11. Provisional Report by Inquirer / Investigator

The Provisional Report is the only inquiry / investigation report that is prepared by the inquirer / investigator.  Exceptions to this are if legal advice is required, or if the inquirer / investigator prepares a report seeking advice from a senior officer.  The Provisional Report is submitted with a simple Provisional Report Cover Sheet which assists Professional Standards administration.

The Provisional Report from the inquirer / investigator contains their recommendations as to provisional findings, provisional determinations and provisional actions.  Only the delegated authoriser can authorise them and may amend them.

A sample of the Provisional Report is at Appendix D.  Word templates for the Provisional Report and Provisional Report Cover Sheet are available on the intranetThe Provisional Report must be proportionate to the allegations.  Brevity is required.  The Provisional Report is to include the sections listed below, which are also clearly set out in the template.

11.1. Responsibilities of Inquirer / Investigator

11.1.1. Recommending Outcomes and Writing Report – Inquirer / Investigator

It is the role of the inquirer / investigator to provide the authoriser with provisional finding(s), provisional determination(s) and provisional action(s) in the Provisional Report.

The outcome of the inquiry / investigation contained in the Provisional Report must adhere to the principles of procedural fairness and provisional Code of Conduct findings must be made on the balance of probabilities. A template of the Provisional Report is available and it is the only inquiry / investigation report required.  A simple Provisional Report Cover Sheet is also required for administrative use in Professional Standards.

If there is sufficient evidence for a member to be charged with an offence or crime, a standard court file is to be completed. A Provisional Report might be required at this stage – or may be deferred pending the outcome of the court process.  This is to be determined by the Deputy Commissioner.

In general terms the inquirer / investigator’s responsibilities cease at this point, unless the file is returned to them.

11.1.2. Determining the Rank of the Authoriser

The tables below show the rank of the authoriser in different outcomes where the inquirer / investigator is a sergeant (first table) or inspector (second table):

Abacus - Determining the Rank of the Authoriser table

11.2. Inquiry / Investigation Outcomes

No two Abacus investigations are the same and no two subject officers have the same service history and conduct history; therefore a one-size-fits-all outcome would be unfair and inappropriate.  Section 43(3) Actions should be considered if a member has been provisionally found to have breached the Code of Conduct.  CPD opportunities are to be considered in all Abacus matters, whether or not there is a provisional determination that the Code of Conduct has been breached. CPD should occur in the interests of continuous improvement and development of the knowledge and skills of members.

Any action taken under section 43(3) of the Police Service Act 2003 is discretionary.  Action is taken to maintain, restore and enhance public confidence, to uphold proper standards of conduct and to ensure members are accountable for their actions.

In considering the final outcome of a matter inquirers / investigators must give due credit where a member has made a voluntary disclosure or an apology to a complainant.

The possible outcomes for Abacus matters are depicted in the list below (and also in the flowchart at Appendix A).   There are only two broad outcomes for Code of Conduct matters; that, on the balance of probabilities the Code of Conduct

  • was breached
  • was not breached.

Within each of those two categories there are a number of options which relate to proposed courses of action:

Abacus - Inquiry/Investigation Outcomes table

A discretionary decision may be made to not issue a Determination Notice for some breaches of the Code of Conduct – this is only an option when no section 43(3) Action is being taken.

If the final determination is that a Determination Notice is issued the IAPro icon turns red. This means it forms part of the conduct history of that member and may be considered in any future breach of the Code of Conduct.  Any section 43(3) Action of a reprimand or higher will affect the member’s eligibility for wearing or receiving medals.  A Commander is able to impose a limitation on the subject officer wearing or being awarded the Commissioner’s Medal or National Police Service Medal for a period up to and including 12 months. An Assistant Commissioner or the Deputy Commissioner can impose a limitation on the subject officer wearing or being awarded the Commissioner’s Medal or National Police Service Medal for a period up to and including 5 years.

11.2.1. Factors to Consider

When looking to arrive at an appropriate outcome inquirers / investigators must be mindful that members of Tasmania Police:

  • must be accountable for their actions,
  • must maintain proper standards of behaviour and conduct; and
  • must ensure that public confidence in Tasmania Police is maintained, enhanced and, where necessary, restored.

For further information refer to Provisional Action.

11.2.2. Equity in Outcomes

Inquirers, investigators and authorisers are required to contact Professional Standards to receive advice about the appropriateness of intended actions.  This will assist in achieving equitable outcomes across Tasmania Police.

The separate roles of inquirer / investigator and authoriser in the process, combined with audits by Professional Standards, ensures accountable and fair decision-making.  Professional Standards provides six-monthly reports to the Deputy Commissioner including a section on the equity of outcomes across the State.

11.3. Provisional Report Structure

This section describes the structure of a Provisional Report.  An example Provisional Report is at Appendix C.

11.3.1. Introduction

This section describes the purpose of the report, advises who the inquirer / investigator was and that the Provisional Report is based on the inquirer / investigator’s recommendations.  It also provides, in broad terms, the provisional outcome.

Note: whilst the Provisional Report is based on the recommendations of the inquirer / investigator, the authoriser exercises their own judgement in relation to the matter and must be satisfied that the provisional findings are able to be substantiated on the balance of probabilities.

11.3.2. Conflict of Interest

Clear statements are required on conflicts of interest.  The authoriser is to state whether or not an actual, perceived or potential conflict of interest exists or could be seen to exist that renders them, or might be perceived to render them, unable to impartially assess the matter and complete their responsibilities.

The inquirer / investigator is also to state whether or not an actual, perceived or potential conflict of interest exists or could be seen to exist that renders them, or might be perceived to render them, unable to impartially assess the matter and complete their responsibilities.

Further information on conflicts of interest is available at Part 1.47 of the TPM.

11.3.3. Courses of Action

This section advises the subject officer of the courses of actions that are available to them.  The subject officer must:

  1. elect to make a written submission in response to the Provisional Report within 15 calendar days (or other period as agreed), Note
    • If the subject officer elects this course of action, the written submission is to be forwarded directly to the authoriser. The subject officer may provide a copy to her/his manager should they wish to do so. The authoriser will consider any submission the subject officer makes in response to this Provisional Report.
    • The authoriser will then, within 15 calendar days of receipt of the submission (or other period of time which will be specified), issue a Final Report and, if applicable, a Final Determination Notice. The Final Report and, if applicable, Final Determination Notice will take into account any matters raised by the subject officer’s submission.
  2. Or elect not to make a written submission by signing the end of the Provisional Report in the space provided within 15 calendar days (or other period as agreed) Note
    • If the subject officer elects this course of action, a signed copy of the Provisional Report is to be forwarded directly to the authoriser. The subject officer may provide a copy to her/his manager should the subject officer wish to do so.
    • The authoriser will then, within 15 calendar days of receipt of the signed copy (or other period of time which the authoriser will specify), issue a Final Report and, if applicable, a Final Determination Notice.
  3. Or accept the outcome of the Provisional Report within 15 calendar days (or other period as agreed) by signing the end of this document in the space provided and by signing the attached Determination Notice, if any. Note
    • If the subject officer elects this course of action, a signed copy of the Provisional Report is to be forwarded directly to the authoriser. The subject officer may provide a copy to her/his manager should they wish to do so.
    • The Provisional Report then becomes the Final Report and any Provisional Determination Notice will become the Final Determination Notice.  Once any actions required on the Final Determination Notice are completed the matter will be considered finalised.

The Provisional Report stipulates that the 15 calendar day’s response provision applies unless the subject officer is granted an extension by the authoriser.  It also stipulates that if the subject officer does not respond to the Provisional Report within 15 calendar days (or other period as agreed) the matter may be finalised in the terms of the Provisional Report.

The subject officer is advised in this section of the report that they are being directed to submit a response under the provisions of Section 35 (2) (c) of the Police Service Act 2003.  In the interests of fairness, they are further advised that if they do not respond it may be considered to be a failure to comply with a lawful direction, contrary to Section 42(3)(b) of the Police Service Act 2003.

The subject officer is informed that they can contact the authoriser directly, or through their manager, if there is anything that they would like clarified, if they require an extension of time, or if they would like any further advice.

11.3.4. Your Rights

The subject officer’s rights are listed in this section of the Provisional Report, together with contact details for the Police Association of Tasmania and People Support.

11.3.5. Incident Overview

A very brief overview of the incident is to be provided here.  The overview provided should be proportionate to the level of the matter (2 or 3).

11.3.6. Alleged Behaviours

A concise summary of the alleged behaviours is required.  If there are multiple behaviours (or incidents) they should be separately numbered and ordered chronologically where possible.

At this point there is no need to link them to any particular Code of Conduct matter (for example ‘bring discredit’ would be listed by the specific behaviour such as sending an abusive e-mail from a Tasmania Police e-mail account).

11.3.7. Summary of Inquiry / Investigation Undertaken

A concise summary of the inquiry / investigation undertaken is to be required.  This should include the names of people interviewed, and any witnesses who were not interviewed.  The evidence in relation to each behaviour should be briefly described.  Any points in issue or disputed facts should be identified.

11.3.8. Provisional Finding

A provisional finding about the alleged behaviour and whether or not it occurred, on the balance of probabilities is to be recorded for each alleged behaviour.

Sample wording is “…my provisional finding, on the balance of probabilities, is that behaviour #1 occurred/did not occur…”.

It is provisional because it is subject to change by the authoriser, or following a written submission from the subject officer (should they choose to make one).

11.3.9. Provisional Determination

Having arrived at a provisional finding that a certain behaviour did occur, a provisional determination then needs to be made to identify whether or not that behaviour amounts to a breach of the Code of Conduct.

A provisional determination is to be listed for each alleged behaviour. It must specify the section of the Code of Conduct that it relates to, together with the offence or crime name and details of the relevant legislation and section, if applicable. Sample wording is

Having provisionally found that behaviour #1 occurred I considered if the behaviour amounted to a breach of section 42 (Code of Conduct) of the Police Service Act 2003.

My provisional determination is;

42(9) A police officer must not access any information to which the police officer is not entitled to have access.- Breach

11.3.10. Provisional Action

Prior to proposing a Provisional Action the inquirer/investigator, and then the authoriser must take in to account the conduct of the subject officer and a number of other factors.  It is essential that the subject officer’s circumstances are taken in to account and that an appropriate balance is struck to ensure that members of Tasmania Police:

  • are accountable for their actions
  • maintain proper standards of behaviour and conduct; and
  • ensure that public confidence in Tasmania Police is maintained, enhanced and, where necessary, restored.

Accordingly, the following must be taken in to account

  • any mitigating circumstances
  • the subject officer’s service history (including rank, length of service, current position)
  • the subject officer’s conduct history (conduct history will be made available to the inquirer / investigator by Professional Standards when requested)
  • the appropriateness of a section 43(3) Action/s to ensure standards are maintained
  • the subject officer’s eligibility to wear or apply for medals
  • the subject officer’s welfare needs (if applicable)
  • suitable CPD opportunities
  • if applicable, the indicative actions framework for drink and drug driving

11.3.10.1. Mitigation

A clear statement is required that details any mitigating factor(s).  If there is no mitigating factor this needs to be stated also.  The subject officer’s engagement in the process and openness and honesty is to be commented upon in this section.

11.3.10.2. Service History

The subject officer’s service history is to be stated.  As a minimum it is to include their date of appointment, rank, and current position.  It may be appropriate to also add secondary roles or other known significant matters (e.g. previously awarded a Commissioners Commendation for bravery).

11.3.10.3. Conduct History

The subject officer’s conduct history is to be stated.  This section is focussed on whether or not the subject officer has previously received a Determination Notice.  If so, the circumstances need to be stated, including

  • an incident overview
  • the applicable paragraph of the Code of Conduct
  • the date the subject officer signed the Determination Notice (if more than five years old the Determination Notice is to be given reduced weight in determining an appropriate provisional action).

11.3.10.4. Values Statement

A statement is required about how the behaviour does not reflect the Values of Tasmania Police.

Example

It is essential that you understand that integrity, equity and accountability must guide our actions and that our behaviour must be appropriate and disciplined.  Tasmania Police values are the foundation for the types of ethical behaviour expected from members.  This behaviour must be demonstrated in all aspects of work.  Your behaviour has fallen short of the standard that we, and the community, expect.  You have however, through this process, conducted yourself appropriately.  You have demonstrated that you are prepared to be accountable for your actions and have been open and transparent.

11.3.10.5. Provisional Action

The provisional action recommended should clearly specify which behaviour(s) it is linked to – if it applies to all behaviours then the words “Provisional Action (Global)” should be used.  If it is linked to a section 43(3) action, the precise action should be detailed, e.g. “section 43(3)(a) Inspector’s Counselling”.

Example

“I provisionally determined that you breached section 42(9) of the Police Service Act 2003 in that you accessed information you were not entitled to access, namely the entities of your family members.  Taking in to account the

  • need to ensure members are accountable for their actions
  • need to ensure proper standards of conduct are upheld
  • need to ensure public confidence is maintained, restored or enhanced
  • circumstances of this matter
  • your personal circumstances

the provisional action I propose in relation to Behaviour 1 is

  • Determination Notice (Breach)
  • Section 43(3)(a) Counselling by an Inspector of Police”

The action is provisional because it is subject to change by the authoriser, or following a written submission from the subject officer (should they choose to make one).

11.3.11. Medals

A clear statement must be made in relation to whether or not the matter will have any impact on the subject officer’s eligibility to wear, or be considered for, medals.  There is to be no impact unless a provisional action of reprimand or higher is proposed.  If a reprimand or higher is proposed the authoriser must clearly state the length of time that the member will not be entitled to wear or be eligible for medals.

A Commander is able to impose a limitation on the subject officer wearing or being awarded the Commissioner’s Medal or National Police Service Medal for a period up to and including 12 months. An Assistant Commissioner or the Deputy Commissioner can impose a limitation on the subject officer wearing or being awarded the Commissioner’s Medal or National Police Service Medal for a period up to and including 5 years.

11.3.12. Organisational Learning

It is important to identify if there are any Organisational Learnings that have been identified.  If so, they should be described, and formal correspondence prepared to ensure that the appropriate business area is advised of the issue identified (the HP Records Manager number of that report should be included)

11.3.13. Continuing Professional Development

Any CPD is to be described including detail of who is to administer it (e.g. the subject officer’s supervisor or manager) and whether it involves another area such as the Operational Skills Unit.  The time frame in which it is to be completed also needs to be stated.

11.4. Determination Notice

Provisional Determination Notices are to be prepared by the inquirer / investigator and will be amended, if required, by the authoriser. A provisional Determination Notice must include any section 43(3) Action or CPD opportunity.  Provisional Determination Notices may have either one of those outcomes, or both, or none.  A template is provided and is available here, all fields (up to and including the authoriser’s signature) are mandatory.  An example Determination Notice is provided at Appendix D.

The wording of provisional Determination Notices must state which section(s) of the Code of Conduct has been breached for each complaint allegation, internally raised matter or compliance review matter.  In addition, the notice must specify the extent to which the member’s conduct is inconsistent with one or more of the Tasmania Police Values, the Police Officer Oath / Affirmation or the National Police Code of Ethics.

Examples

  • both section 43(3) Action and CPD
    In addition to the action/s under section 43(3) of the Police Service Act 2003, you are to be provided with Continuing Professional Development of [description of the professional development e.g. verbal advice and guidance by a supervisor / manager] in respect to the above-mentioned breach(es) of the Act”.
  • CPD only
    “Whilst a breach of section [ ] of the Police Service Act 2003 was determined, it is not necessary to enact any of the actions provided by section 43(3) of the Act.  You are, however, to be provided with [description of the Continuing Professional Development e.g. verbal advice and guidance by a supervisor / manager] in respect to the above-mentioned breach(es) of the Act”.

11.5. Other Inquirer / Investigator Action

The inquirer / investigator is responsible for the below.  The authoriser is also responsible for ensuring the following are completed:

  • drafting outcome letters to complainants;
  • drafting letters to witnesses and witness officers (if appropriate);
  • drafting outcome letters, where required, to the Integrity Commission (for signature by the Professional Standards Commander);
  • drafting a media release (if one is required – refer notification to media);
  • ensuring welfare and support needs are addressed;
  • ensuring outstanding BlueTeam ‘Tasks’ are completed;
  • ensuring running sheets are complete;
  • ensuring all documents are uploaded to BlueTeam;
  • ensuring the provisional Determination Notice (if any) is loaded on BlueTeam;
  • ensuring all documents are printed in hard copy, and recording on the documents the date they were uploaded to BlueTeam; then forwarding the hard copy file to the authoriser.