Date September 2023

Introduction

A key element of an institution’s response to child sexual abuse is the action they can take when there is an allegation of child sexual abuse or related conduct (such as boundary breaches or grooming behaviour) against a staff member within their organisation, including any disciplinary action. Within the State Service, the State Service Act 2000 (‘State Service Act’), the State Service Code of Conduct and the Employment Directions that relate to suspensions, misconduct investigations and the ability of an employee to perform their role, form the central components of the State Service disciplinary system.1

Throughout our Inquiry, we heard there were significant problems with the Tasmanian State Service disciplinary system, particularly as it relates to matters involving child sexual abuse or related conduct. Problems with the disciplinary system resulted in slow or inadequate responses to concerning staff behaviour, leaving children to be cared for or supervised by people who posed a potential threat to their safety. To address these problems, we make recommendations in this chapter to:

clarify and strengthen the articulation of expected and acceptable behaviour of state servants, including conduct outside of their employment
improve the disciplinary processes that Heads of Agencies can follow in response to concerning staff behaviour, including considering child safety and a complainant’s needs
encourage the Tasmanian Industrial Commission to consider the special requirements that should apply when addressing child sexual abuse in relation to employment matters.

We also make observations about the role of unions in promoting child safety and invite their support in reforming the disciplinary process.

In this chapter, we set out how State Service disciplinary processes fit within the broader institutional response to allegations and concerns about child sexual abuse and related conduct.

We explain how the main mechanisms of the State Service disciplinary system—including unions and the industrial system—operate. We discuss the problems and failures we heard about the disciplinary system when it is used to address matters involving child sexual abuse, and recommend improvements.

In this chapter, while the focus is on the disciplinary provisions within the State Service Act and associated policies and procedures (the ‘State Service disciplinary system’), we acknowledge obligations on the State arising from the broader employment framework. This framework includes the Industrial Relations Act 1984 and registered awards and agreements. While we do not explicitly refer to these broader frameworks in this chapter, we tested our recommendations with relevant stakeholders and experts. We understand the delicate and, at times, difficult balance incumbent on the State between exercising a duty of care to ensure the safety of children and complying with obligations to an employee in matters relevant to child sexual abuse.

We consider that, in exercising this balance, the duty of care to children has too often been compromised because of barriers within the existing disciplinary framework and its practical application. In this chapter, we seek to identify and address these barriers.

Our proposed reforms require a significant shift in how the State approaches this process and may require changes to awards and agreements. We consider that prioritising child safety justifies this approach.

Institutional responses to child sexual abuse

In Chapter 18, we discuss the obligation of Tasmanian Government departments that provide services to children to become child-safe organisations. This includes having child-focused processes for complaints and concerns. The National Royal Commission noted that responses to complaints of child sexual abuse encompass a range of actions that institutions should take. These actions include:

Identifying complaints—child or adult victim-survivors who disclose possible child sexual abuse should be taken seriously.
Assessing risk—potential safety issues for victim-survivors and other parties should be identified and action taken to ensure their safety (including for the subject of the complaint where necessary).
Reporting—all relevant bodies and institutions should be informed of the complaint, including, for example, the police, the Registrar of the Registration to Work with Vulnerable People Scheme, the Strong Families, Safe Kids Advice and Referral Line, and any relevant professional oversight body.
Communicating and providing support—departments may be required to communicate with all affected parties and must assess the need for, and be able to provide, support for those involved, including complainants, parents, employees and other affected children.
Investigating—this process should begin after a complaint is received and risk assessment completed. Some actions, for example, ensuring the integrity
of a location as soon as possible after a complaint is received, can be crucial to an investigation.
Maintaining records—institutions should maintain relevant records, including of investigation processes.
Completing a root cause analysis—where required, review the circumstances of the complaint to identify possible systemic factors that may have contributed to the incident.
Monitoring and reviewing—have policies and procedures to help continually improve the ‘protection of children for whom the institution has responsibility’.2

In Chapter 6, we recommend establishing a Child-Related Incident Management Directorate. This Directorate would support agencies to meet the requirements outlined by the National Royal Commission, as would our recommendations for improved complaints policies and processes in each of our focus institutions: education, out of home care, youth detention and health (refer to Recommendations 6.6, 6.7, 6.8, 9.31, 9.32, 12.35, 15.16, 15.17). The Directorate would be responsible for three core functions comprising:

support for local-level responses through case management
investigations
legal review of the investigation, and recommendations to the Secretary.

The State Service’s disciplinary system would control management of child sexual abuse-related misconduct matters by the Directorate, including procedures for an investigation and the recommendations made at the end of an investigation.

State Service disciplinary system

The State Service disciplinary system has remained largely unchanged for more than 20 years. This section provides a brief outline of the system’s main features, key elements of which we discuss in more detail throughout this chapter.

If an allegation of child sexual abuse is made against a staff member, a preliminary assessment is conducted to decide whether the matter should be investigated to determine if there has been a breach of the State Service Code of Conduct. We understand preliminary assessments are sometimes carried out before the Head of Agency is aware of the allegation.3

Once the preliminary assessment is complete, the information is transmitted to the Head of Agency who then decides how to respond to the allegations. The response may include:

suspension
investigation for a breach of the State Service Code of Conduct
terminating employment when an employee no longer holds minimum requirements for employment (such as a loss of Registration to Work with Vulnerable People).

These processes are guided by Employment Directions issued by the Premier.

If the Head of Agency has reasonable grounds to believe a breach of the State Service Code of Conduct may have occurred, then the Head of Agency is required to appoint an investigator to investigate and determine whether the employee has breached the State Service Code of Conduct.4

At the end of the investigation, if the Head of Agency determines there has been a breach of the State Service Code of Conduct, they may apply sanctions, including counselling, a reprimand, reassignment of duties or termination of employment.5

We note the State has a continued duty of care to an employee who is alleged to have breached the Code the Conduct during the relevant Employment Direction process.

Unions play a role in this process by:

providing information and support to their members
ensuring procedures are adhered to throughout the disciplinary process.

Unions can also support members to appeal to the Tasmanian Industrial Commission against adverse decisions.

Problems with disciplinary processes

In this section, we outline the problems we heard that relate to disciplinary processes in the State Service.

We examine the sudden increase in the number of state servant suspensions by respective departments, which was one factor that instigated the establishment of our Inquiry. It is possible such disciplinary action had been avoided previously because of the inadequacy of the disciplinary processes we heard about and the difficulties in terminating the employment of staff in matters pertaining to child sexual abuse.

Suspensions in the State Service

As discussed in Chapter 1, an increasing number of state servant suspensions due to concerns about child sexual abuse contributed to establishing our Commission of Inquiry.

By February 2023, we were aware there had been 92 state servants suspended from their employment since 1 January 2000 in relation to allegations of child sexual abuse or related conduct in the then Department of Communities, the then Department of Education and the Department of Health. These are outlined in Figure 20.1 and in more detail below.6

Figure 20.1: Suspensions by department for the period January 2000 to February 2023
and for the period November 2020 to February 20237

Suspensions from January 2000 to February 2023 Suspensions from November 2020 to February 2023

Department of Communities

Of the 23 suspensions reported by the former Department of Communities (now the Department for Education, Children and Young People), 10 occurred since or just before the announcement of our Inquiry in November 2020.8 Nineteen suspensions related to employees staff at Ashley Youth Detention Centre.9 In Chapter 11, Case study 7, we consider the Department’s response to allegations of child sexual abuse made against staff at Ashley Youth Detention Centre. In that case study, we describe instances where employees remained on site despite the Department being aware of allegations through redress claims, civil litigation and other complaints.

Within the 23 suspensions, there were four suspensions in relation to Child Safety Services since 2000.10 Two of these suspensions occurred during our Inquiry. We discuss this concerningly low number of suspensions in Chapter 8.

The Department acknowledged that poor record keeping and inaccurate data collection affected the reliability of the data the Department provided in relation to Ashley Youth Detention Centre and out of home care.11 Some staff were suspended multiple times without being dismissed. The Department did not routinely report matters to the Registrar of the Registration to Work with Vulnerable People Scheme, Child Safety Services and Tasmania Police.

Department of Education

In the former Department of Education, records provided to us indicate there had been 43 suspensions relating to allegations of child sexual abuse or related conduct between January 2000 and February 2023, with 20 of these occurring since the announcement of our Inquiry.12 In Chapter 5, we discuss some of these cases and the effects of the Department’s initial investigations on victim-survivors. In this chapter, we discuss some problems with disciplinary processes highlighted by these case studies. The Department’s record keeping in the period set by our terms of reference was much better than that of other departments, although we were told of issues with its record keeping outside this period.

Department of Health

There were 26 suspensions in the Department of Health since January 2000 to February 2023, with eight of these occurring since the announcement of our Inquiry.13 Our review of the information on suspensions the Department provided suggest the Department routinely notified the Registrar of the Registration to Work with Vulnerable People Scheme when it suspended employees in relation to alleged child sexual abuse. However, the Department was not consistent in how it reported matters to police or other regulatory bodies such as the Australian Health Practitioner Regulation Agency (‘Ahpra’) or the Strong Families, Safe Kids Advice and Referral Line.14

Inadequacy of disciplinary processes

Through submissions, sessions with a Commissioner, stakeholder consultations, roundtable discussions and public hearings, we identified difficulties with State Service disciplinary processes and procedures. Criticisms and concerns about disciplinary processes as they relate to allegations of child sexual abuse came not only from victim-survivors and their families and supporters but, also, government officials tasked with administering disciplinary processes—from human resources staff to departmental secretaries.

In summary, these problems included:

A one-size-fits-all approach under the disciplinary system means the investigative processes used in cases of serious misconduct, such as child sexual abuse,
are the same as those used for lower-level misconduct.
There is no ability to immediately terminate employees in cases of serious misconduct where it is overwhelmingly clear the misconduct occurred
or the employee admits to the misconduct.
The basis for, and timing of, suspending employees is unclear following an allegation or incident of child sexual abuse.
The process for terminating employment is unnecessarily difficult in situations where an employee no longer possesses the certification or accreditation necessary to perform their role.
The State Service provides insufficient guidance on issues and considerations regarding disciplinary processes.

More specifically, we heard wide-ranging criticisms of and concerns about disciplinary processes regarding each of the institutions we examined.

In the context of children in schools, we received evidence that:

Narrow and legalistic interpretations of the State Service Code of Conduct meant that despite information suggesting that children might be at risk, the behaviour did not result in disciplinary action. This was particularly the case when behaviour occurred outside school grounds.15
Investigations tended to consider each individual allegation in a complaint separately rather than assessing whether the allegations reflected a pattern of behaviour consistent with sexual abuse or boundary breaches such as grooming.16
Investigation processes were slow, not trauma-informed, did not reflect good practice when interviewing children (where this occurred), and did not appear to understand grooming behaviours.17
Some departmental responses lacked an understanding of child sexual abuse and related concerns.18
Investigations ended if a teacher resigned.19
There was not enough support, care and communication with children, parents, staff and the school community.20
Preliminary assessments appear to have been treated as mini-investigations and developed as a way to deal with disciplinary matters before engaging with the more involved Employment Direction No. 5—Breach of Code of Conduct process.21

Regarding children in out of home care, we observed:

Low numbers of disciplinary processes. Because of poor record keeping, it was difficult to determine whether there had been more disciplinary action than that reported to us or whether the Department had been slow to take action against staff for concerning behaviour.22

Regarding children in youth detention, we make the following findings and observations in Chapter 11:

The State Service disciplinary framework was not suited to managing risks associated with child sexual abuse.23
There were problems with the preliminary assessment process, including:
- applying a high threshold to the initiation of a disciplinary investigation and, instead, conducting a proxy investigation through preliminary assessment processes
- a lack of clarity in the process for initiating a preliminary assessment regarding a conflict of interest, including identifying a suitable decision maker
- unacceptable delays in the process risked exposing children to ongoing harm.24
The Department adopted informal practices of ‘putting allegations’ to alleged perpetrators for response.25
The Department showed a reluctance to consider the cumulative impact of multiple allegations.26
At times, serious complaints were being investigated by staff at Ashley Youth Detention Centre and not being appropriately escalated.27
At times, the Department did not adequately and appropriately investigate complaints in a timely manner, including complaints made by staff and detainees, and allegations made through redress schemes.28
There were real or perceived challenges in responding to allegations of child sexual abuse against staff due to industrial pressures.29
One of the limitations on the Department’s ability to investigate complaints or take disciplinary action regarding allegations of child sexual abuse or related conduct by staff was the absence of provisions in the State Service Code of Conduct relating directly to child safety or child abuse.30
At least until late 2020, due to legal advice or a practice that had developed, no disciplinary action was taken regarding allegations about staff from redress schemes without the Department seeking a sworn statement from a complainant.31
In late 2020, the Department changed its approach to taking disciplinary action against staff who had allegations of child sexual abuse against them and started to place appropriate weight on public interest considerations.32
Despite improvements over the last few years, there continues to be significant delays in taking disciplinary action against staff with allegations of child sexual abuse against them.33
There appeared over time to be a tension or ‘push-pull’ between the prioritisation of risks to child safety and risks to staff morale and wellbeing. We saw periods where concerns about child safety appeared to be dominant, but over time as the Department attempted to respond to safety concerns emerging from staff culture and conduct, the wellbeing of staff would reemerge as a dominant consideration.34

Regarding children in health services, we make the following findings or observations in Chapter 14:

Investigators examining child sexual abuse allegations in health services should have access to relevant expertise and provide victim-survivors with the option to take part in an investigation.35
There were perceived limitations on taking disciplinary action against a staff member under the State Service Code of Conduct because the requirement that employees abide by Australian law was assumed to require evidence that a person has been convicted of a crime.36
There is a need to apply independent and rigorous investigatory and disciplinary processes to complaints in health settings and for these processes to use trauma-informed practices to minimise trauma for complainants.37
Launceston General Hospital failed to consider the cumulative effect of complaints about James Griffin.38
None of the many concerns raised with Mr Griffin were responded to with a disciplinary response harsher than a letter, education and direction. A disciplinary process was only recommended when there was no other option but to do so, namely, when Mr Griffin was unable to perform his duties when his Registration to Work with Vulnerable People was suspended on 31 July 2019.39
Launceston General Hospital’s response to Will Gordon’s 2017 Safety Reporting and Learning System complaint did not comply with the requirements of a State Service Code of Conduct investigation.40
Standards of behaviour for staff working in child-facing roles should have been in place, so Mr Griffin’s conduct could be transparently assessed and disciplinary action triggered in response to his repeated failures to comply with the standards. The State Service Code of Conduct is not sufficient to assess child safety complaints given its general nature.41
The disciplinary process into Mr Griffin was aborted when he resigned. This practice means the institution does not have the opportunity to learn from any systemic issues that may arise by examining the alleged conduct.
Once such a process stops, there is no record preventing the ex-employee from being re-employed to the State Service at a later date.

Difficulties with terminating employment

Terminating the employment of an employee from the Tasmanian State Service is difficult. We were told this difficulty stems from the provisions of the State Service Code of Conduct and the processes for terminating employment such as Employment Direction No. 5—Breach of Code of Conduct.

According to the interim report of the Independent Review of the Tasmanian State Service, terminations of employment from the State Service for breaches of the State Service Code of Conduct are difficult and, therefore, rare.42 The Independent Review’s final report, published in 2021, examined (among other things) the Tasmanian State Service’s misconduct and disciplinary framework. The Independent Review’s remit was all types of breaches of the State Service Code of Conduct, not only matters involving child sexual abuse. It reported 320 allegations of breaches of the State Service Code of Conduct in the five years before the report’s publication. Of these allegations, just over half, 165 (52 per cent), were confirmed breaches, of which only 11 (about 4 per cent) resulted in termination of employment.43 Stakeholders told the Independent Review that ‘the overly prescriptive nature of procedures associated with separations in the [Tasmanian State Service] may be impacting on rates at which employees are terminated for breaches of the Code of Conduct or underperformance’.44 The Independent Review found, compared with the proportion of terminations of employment for misconduct in the Australian Public Service, terminations of employment for Code of Conduct violations in the Tasmanian State Service were much lower.45

Similarly, a 2021 report for the Department of Premier and Cabinet, Critical Analysis Report on Termination in the State Service, noted the disciplinary system in Tasmania was heavily prescriptive compared with other states and territories, and that this resulted in lower resolution rates for misconduct matters and longer times to resolve such matters.46 The report concluded that the low turnover rate in the Tasmanian State Service was:

caused by the prescriptive nature of procedures in the [Tasmanian State Service]. Because a failure to strictly adhere to each step could result in the termination being alleged to have been mismanaged, extensive time is taken to ensure everything is covered and every step is taken.

This focus, internally, on form over substance then unduly narrows the focus of the [Tasmanian Industrial Commission]. The [Tasmanian Industrial Commission] is reviewing strict procedures which already burden the [Tasmanian State Service] system and is not empowered, through legislation, to take a more practical or discretionary view of matters.47

The Independent Review’s interim report observed that stakeholders had expressed concerns that ‘employer-initiated terminations are rarely used in the [Tasmanian State Service] … termination is very difficult, even for very clear examples of underperformance or misconduct’.48 Stakeholders noted that the reasons for this included:

misconduct procedures were difficult
natural justice requirements could be overly burdensome
there are ‘general sensitivities around terminations’.49

Some people who engaged with our Commission of Inquiry made similar observations about difficulties associated with misconduct and disciplinary procedures. For example, Michael Easton, Chief Executive Officer, Integrity Commission, said public sector agencies in Tasmania were generally ‘overly risk averse’ when contemplating taking action against employees.50 In Mr Easton’s view, this stemmed from an approach in government agencies that over-emphasised privacy and confidentiality, and agencies’ desire to ‘avoid employees being reinstated by the Tasmanian Industrial Commission’.51

Likewise, Eric Daniels, former Chief Executive, Hospitals North/North West in the Department of Health, told us he thought there was a ‘conservative industrial environment’ in the Tasmanian State Service.52 Mr Daniels said, in his experience:

[n]ot associated with child sexual abuse but associated with other what I consider to be reasonably significant matters in relation to the practice of individuals, are treated with quite significant delicacy, for want of a better word, to ensure procedural fairness.53

When asked whether it was fair to say there was a focus on industrial relations rather than on child safety when managing concerns about employees, Mr Daniels hypothesised that he believed this was the case.54

A further general observation about the nature of employment in the Tasmanian State Service is that Tasmania’s relatively small population may contribute to the ‘general sensitivities’ about terminations of employment. For example, Professor Richard Eccleston, University of Tasmania, told us that ‘[g]iven the broader community dynamics in Tasmania, there is also a risk that obligations to colleagues might trump obligations to uphold high ethical standards in the workplace’.55 Professor Eccleston went on to say:

[t]here are strong social and professional connections among the population and among many employees of the [Tasmanian State Service]. These interdependencies make it particularly difficult to maintain integrity and a commitment to process and ethical conduct.56

We are concerned that a culture of not addressing poor professional conduct,
of any nature, may embolden child sexual abuse offenders in the workplace.

Amending the State Service Code of Conduct

State Service Code of Conduct

The State Service Act governs the conduct of Tasmanian State Service employees. The Act’s provisions set out the standards and conduct expected of State Service employees and the consequences for engaging in misconduct. Relevant to employee misconduct, the Act includes:

the State Service Code of Conduct57
sanctions for breaches of the State Service Code of Conduct58
provisions regarding the termination of employment.59

Section 9 of the State Service Act outlines the State Service Code of Conduct.
The State Service Code of Conduct outlines the required behaviour of all state servants.
It is broad in nature, which means it does not contain specific provisions about child sexual abuse. This reflects a similar approach across most Australian states and territories.60 Still, depending on the situation, child sexual abuse and related conduct could constitute a breach of several provisions of the State Service Code of Conduct.

Relevant to matters that involve child sexual abuse and related conduct, several provisions in the State Service Code of Conduct require that all State Service employees conduct themselves in particular ways ‘in the course of State Service employment’.
For example, employees must, in the course of their employment:

behave honestly and with integrity61
act with care and diligence62
treat everyone with respect and without harassment, victimisation or discrimination63
comply with the law64
behave in a way that upholds the State Service Principles.65 (These principles include that the State Service performs its functions ‘in an impartial, ethical and professional manner’.)66

State Service employees also ‘must at all times behave in a way that does not adversely affect the integrity and good reputation of the State Service’.67 This requirement captures conduct that does not occur in the course of employment but has a sufficient nexus between the conduct and the employee’s State Service employment (this is discussed in Section 5.3).

State Service employees must also comply with any lawful and reasonable direction given by a person having authority to give the direction.68

Depending on the situation, child sexual abuse and related conduct (including boundary breaches and grooming behaviours) may contravene the State Service Code of Conduct by:

breaching the State Service Principle of ethical and professional behaviour
being a breach of applicable law
victimising children
adversely affecting the integrity and good reputation of the State Service.

A finding that an employee has breached the State Service Code of Conduct can result in sanctions, including:

counselling
a reprimand
reassignment of duties
termination.69

However, as explained, we understand that termination of employment is seldom
used in relation to sanctions imposed for breaches of the State Service Code of Conduct and that it can be difficult to terminate employees from the Tasmanian State Service.

Suitability for child safety

Several people told us the State Service Code of Conduct is not suitable for taking disciplinary action in relation to child sexual abuse or related conduct. Timothy Bullard, Secretary of the Department for Education, Children and Young People, said the State Service Code of Conduct ‘is not a framework well suited to the determination of allegations of child abuse’.70

Kathrine Morgan-Wicks, Secretary of the Department of Health, considered the State Service Code of Conduct should be amended to include a specific provision aimed at prohibiting specific behaviours.71 Michael Pervan, then Secretary of the former Department of Communities, said the State Service Code of Conduct was ill-suited to investigating evidence from redress applications and allegations of child sexual abuse in general.72

Professors Stephen Smallbone and Tim McCormack, who conducted the Independent Education Review, observed that the generic nature of the Code’s provisions meant it was ‘ill-suited to the particular contexts of schools’ in that it could not ‘adequately deal with allegations of child sexual abuse made against Department of Education employees’.73

These comments about the general unsuitability of the State Service Code of Conduct to deal with matters involving child sexual abuse or child safety were affirmed by Ginna Webster, Secretary, Department of Justice, and Jenny Gale, Secretary, Department of Premier and Cabinet and Head of the State Service, both of whom indicated that the State is considering reforms to the State Service Code of Conduct.74

A Code of Conduct that responds to risks of child sexual abuse

It is apparent there are deficiencies and problems with the application or interpretation of the State Service Code of Conduct, particularly when it is used to address matters involving child sexual abuse. These problems contribute to the difficulty in taking disciplinary action against employees. They include the fact the State Service Code of Conduct and/or its narrow interpretation gives insufficient weight to the risk that a state servant’s behaviour may place children in danger of sexual or other forms of abuse. These problems arise from the interpretation of the following requirements of the State Service Code of Conduct that:

an employee must comply with all applicable Australian law
an employee must at all times uphold the integrity and good reputation
of the State Service
conduct must be ‘in the course of employment’ or have a ‘nexus’ to employment.

These interpretations are discussed in the following sections.

The application of these provisions is guided by advice from the Office of the Solicitor-General. As discussed in Chapter 17, there are limits to a government department’s ability to seek legal advice from external lawyers. Heads of departments are required to follow the advice of the Solicitor-General.

Comply with Australian law

As noted, State Service employees must comply with all applicable Australian law in the course of their employment.75 Child sexual abuse is a breach of the law and, if the perpetrator was found guilty in a court, this would constitute a breach of this provision of the State Service Code of Conduct. Further, given that disciplinary processes attract a lower standard of proof, if it was determined on the balance of probabilities that an employee was likely to have committed a criminal act of sexual abuse, the employee would have contravened the Code requirement to comply with all applicable Australian law.76

However, there appears to be a ‘historical and cultural’ application which means this provision has not been applied unless there has been a proven breach of an Australian law (to the criminal standard).77

Secretary Morgan-Wicks told us that the Australian law requirement:

is considered to be applicable only where the relevant offending of child sexual abuse has been proven in an Australian court of law (i.e. an offender has been found not to have complied with an applicable Australian law) and not where there is only an investigation, or charges only have been laid, or court proceedings are pending or underway.78

Similarly, Secretary Bullard observed that ‘where a prosecution does not proceed or is unsuccessful’, the Head of Agency will rely on other provisions of the Code of Conduct to take disciplinary action, which are normally those relating to behaving with honesty and with integrity, acting with care and diligence, or acting with respect and without harassment, victimisation or discrimination.79 These provisions relate to conduct that is in the course of employment.

The Tasmanian State Service Code of Conduct is based on the Australian Public Service Code of Conduct.80 The latter’s guidance for the equivalent provision—must comply with all applicable Australian law—makes it clear that the decision maker does not need to wait until a breach of the law has been proven in a court for the provision to apply.81

Noting that criminal prosecutions often do not proceed for reasons unrelated to whether the perpetrator committed the offence (including, for example, when the alleged victim is very young or is unwilling to give evidence in a criminal trial), we suggest the broader interpretation, based on the balance of probabilities that criminal conduct has occurred, would allow for a focus on child safety. As a matter of principle, we assume the Government would wish to be able to ensure that state servants who are likely to have committed a child sexual abuse offence can be removed from the State Service.

Uphold the integrity and good reputation of the State Service

Section 9(14) of the State Service Code of Conduct requires an employee to ‘at all times behave in a way that does not adversely affect the integrity and good reputation of the State Service’. This provision appears to be broad and allow the Head of Agency to take disciplinary action against an employee who had been involved in sexual activity or related conduct with a child or young person, irrespective of where that conduct occurred. Unlike many of the other relevant requirements in the State Service Code of Conduct, it does not state that the conduct must be in the ‘course of employment’.

The Office of the Solicitor-General has provided advice on the interpretation of the integrity and good reputation provision, suggesting ‘integrity’ or ‘good reputation’ in this section are not concerned with:

…general considerations relating to the private behaviour, morality or fitness of character of a particular employee, unless there can be said to be a nexus between the behaviour and employment in the [Tasmanian State Service], in the context of accountability to the government, the parliament and the public. Whether there is a nexus requires an evaluative judgement, in the particular circumstances of the case.82

Under this interpretation of section 9(14), there is still a requirement for there to be a nexus between the employee’s behaviour and their employment in the State Service (in the context of accountability to the Government, the Parliament and the public) for the provision to apply. Presumably, this limitation reflects the view that some aspects of private behaviour should not attract a disciplinary sanction. For example, historically, this could have protected state servants from sanctions simply because they were living with a person outside marriage or had unusual political opinions.

In the context of child sexual abuse, we consider that a better approach is to specifically deal with behaviour that places children at risk, rather than relying on value judgments about whether there is a nexus between the conduct complained of and its propensity to adversely affect the integrity and good reputation of the State Service. In other words, where a state servant works with children or young people and the alleged conduct involves a child or young person, this should supply the necessary nexus or link between that conduct and the disciplinary processes that apply under the State Service Code of Conduct.

In other jurisdictions, similar requirements that state servants not behave in ways that can adversely affect the State Service are defined in ways that may avoid this issue. For example, in Queensland, misconduct is defined in section 187 of the Public Service Act 2008 (Qld) as:

(a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

The Code of Conduct for the public service in Queensland also states that state servants will ‘ensure our private conduct maintains the integrity of the public service and our ability to perform our duties’.83

Further, we note that in the Australian Public Service (‘APS’) Code of Conduct, employees are required to behave in a way that upholds ‘the integrity and good reputation of the employees’ Agency and the APS’ at all times.84 This requirement is explained as follows:

2.28. Under s.13(11), employees must at all times uphold the Values and Employment Principles and behave in a way that upholds the integrity and good reputation of their agency and the APS. This means that APS employees’ behaviour outside work is subject to the Code to the extent that:

it could reasonably be viewed as failing to uphold the integrity and good reputation of the employee’s agency or the APS, or
it could reasonably call into question the employee’s capacity to comply with the Values and Employment Principles in their work—for example, their ability to be impartial or respectful.85

This requirement of the Australian Public Service Code of Conduct is interpreted as applying to an employee’s conduct ‘outside normal work hours and at non-work premises’.86 The Australian Public Service advice on interpreting section 13(11) of the Code of Conduct further states that while there is no explicit requirement for conduct to be connected to the employee’s employment, in practice, however, a finding that conduct has breached the code ‘will generally require some degree of connection to the employee’s employment’.87

The Tasmanian legislation should make clear that the requirement that employees are to behave in a way that does not ‘adversely affect the integrity and good reputation of the State Service’ in section 9(14) includes employee conduct outside work where the relevant behaviour means that children and young people are at risk of harm.

Conduct in the course of employment

The term ‘in the course of State Service employment’ is used in several subsections of the State Service Code of Conduct. Based on evidence at our hearings and the materials provided to us, we consider that the term does not adequately protect children from sexual abuse.88 The present application of ‘in the course of employment’ can result in conduct such as grooming behaviour that occurs outside of work situations not being regarded as misconduct under the State Service Code of Conduct, when it should. Secretary Bullard told us:

It’s important to note that these subsections directly relate to conduct that is
‘in the course of State Service employment’. In other words, misconduct that occurs outside the work context (e.g. at a weekend social event or after a young person has left the school where the alleged perpetrator is teaching), would not naturally invoke the [disciplinary] process [to investigate whether the Code of Conduct has been breached] as it would not amount to ‘in the course of State Service employment’.89

Secretary Webster made similar observations about these restrictions in the State Service Code of Conduct:

The current Code of Conduct is largely limited to investigations within
‘the course of employment’ or ‘in connection with employment’. There are limitations on investigations under [the Code of Conduct] where the alleged conduct occurs outside the workplace, and where the threshold for a criminal investigation or prosecution is not reached.90

In 2021, the State Service Management Office provided the Department of Health with an interpretation of the meaning of the phrase ‘in the course of State Service employment’ in relation to the State Service Code of Conduct, stating that this would include conduct ‘directly associated with and expected of an employee at work and in the course of their duties and can include travelling for work purposes’.91 This interpretation is based on workers compensation law cases that have discussed the meaning of ‘in the course of employment’ in an industrial relations context.92 We consider the test for a connection to employment in the context of workers compensation should differ from that applied in connection with disciplinary matters related to the conduct of state servants towards children.

The Office of the Solicitor-General has also provided advice to Department of Health staff on the meaning of ‘in the course of employment’, arriving at an equally narrow interpretation, but based on High Court authority on vicarious liability, not workers compensation law.93 The meaning of the words ‘in the course of employment’ in the context of a civil compensation claim, in which it is argued the State should be held vicariously liable for the behaviour of a state servant, may differ from the way it should be interpreted in deciding whether a state servant should be disciplined for their behaviour that places children at risk of harm.94

This narrow interpretation of ‘in the course of employment’ has meant that, in some cases, inappropriate behaviours towards children and young people were deemed not to have occurred in the course of employment. For example, we heard in victim-survivor Rachel’s (a pseudonym) case, the 2006 investigation into the conduct of her teacher, Wayne (a pseudonym), which included saying she had ‘a nice arse’, drawing a penis with a pen on her ankle and providing her with alcohol, found that he had not breached the State Service Code of Conduct as the relevant conduct had occurred during a non-school sports trip.95 (Rachel’s case is discussed in Case study ‘Wayne’ in Chapter 5.) The investigation concluded that although these incidents had occurred, they did not occur in the course of Wayne’s employment with the Department of Education.96 This conclusion was based on advice from the Office of the Solicitor-General.97 When asked about this advice, Sarah Kay SC, the Solicitor-General, told us:

I wasn’t asked there about whether action could be taken or what action could be taken, it was a question about the construction of a phrase in the statute.
And, they are the words of the statute, so whether something might be considered inappropriate or not objectively is a separate matter to considering the scope of the words that we’re dealing with in section 9 of the State Service Act.98

We acknowledge that if the situation that arose in Rachel’s case were to arise in 2023, it would most likely be handled differently. Secretary Bullard explained that, in 2022, a sufficient nexus would be drawn between Wayne’s conduct and his employment for the purpose of the State Service Code of Conduct:

Ongoing conduct, even outside of school hours, can be held to account and therefore included in the [disciplinary] process where the conduct occurred because of a relationship that had developed out of the employee/student relationship.

…

If allegations such as those raised by Rachel were raised today, the Department would review all allegations in light of there being such a nexus between the allegations and being ‘in the course of employment’.99

Secretary Bullard told us that, in 2022, the student-teacher relationship would be relevant at all times, not just while on school grounds or during school hours. [Emphasis added.]100

However, we note that the State Service Code of Conduct has not changed. Secretary Bullard acknowledged that the requirement for conduct to be ‘in the course of employment’ is an ongoing issue: ‘[t]he need to establish a nexus between the alleged conduct and it being “in the course of employment” means that the Department remains exposed to failings and criticism’.101 The Solicitor-General also told us she had not observed any change in the way her Office views ‘course of employment’.102

Regarding the Department of Health, Secretary Morgan-Wicks told us she had been notified of matters involving allegations against Department employees where there were questions about the nexus between the conduct and the employee’s employment.103 Secretary Morgan-Wicks told us, in these cases, she had applied
a low threshold and had suspended employees while an investigation was undertaken despite the conduct in question having occurred outside the workplace.104 She said this was done to place ‘child safety absolutely at the centre’.105 We support this approach.

In our view, the requirement that there be a nexus between conduct and employment will continue to compromise the safety of children in government institutions. To ensure their safety, the State Service Code of Conduct should be able to hold state servants accountable for behaviours associated with child sexual abuse, wherever those behaviours occur, including outside of the workplace or after working hours. Where an employee has contact with children or young people through their work, and an allegation is made against that employee, the fact that the connection between the employee and the child or young person is through the employee’s work should be enough to warrant disciplinary action to ensure all children and young people in that workplace are protected.

We considered other Australian jurisdictions to determine if there was guidance for the Tasmanian Government on how to address the issue of a nexus to employment. In the Northern Territory, an employee will commit a breach of discipline if the employee ‘in the course of employment or in circumstances having a relevant connection to his or her employment, conducts himself or herself in an improper manner’.106 The meaning of ‘relevant connection’ in this context is not defined, but it may capture a broader range of behaviour as being connected to employment.

In the Australian Capital Territory, section 9 of the Public Sector Management Act 1994 (ACT) sets out conduct requirements for public servants, some of which relate to conduct ‘when acting in connection with the public servant’s job’.107 While ‘acting in connection with’ is not defined, the Australian Capital Territory Public Sector Standards Commissioner guidelines state that, in relation to the definition of misconduct, ‘[t]here is no restriction on where or when this conduct occurs and [it] may relate to behaviour that occurs outside of the workplace’. The guidance then notes this may particularly be the case where ‘there is a clear connection between the employee’s out-of-hours conduct and their employment’.108

However, without access to legal advice such as that obtained through our inquiries in relation to the Tasmanian State Service Code of Conduct, it is difficult to draw conclusions about other jurisdictions. As a general observation, other jurisdictions appear to emphasise the need to always uphold the ethical standards of the public sector at all times, although they also make reference to ‘in the course of employment’.109

We note that professional bodies such as Ahpra and the Teachers Registration Board, which regulate the conduct of health professionals and teachers respectively, have provisions in their legislation that allow them to consider the behaviour of these professionals outside a work setting. Ahpra can take immediate action against a registered health professional based on a ‘public interest test’ for conduct that may occur outside the practice of a health practitioner’s profession (which could include child sexual abuse occurring outside the work environment).110

The Teachers Registration Board assesses a teacher’s suitability against a good-character test and fitness-to-teach test. The Board can immediately suspend a teacher’s registration if it reasonably believes they may pose a risk of harm to students for any reason.111 The decisions of the Board affect a person’s employment, and we consider they could be used as examples for the basis of a similar test in the State Service Code of Conduct.

In relation to police, there are provisions in Western Australia and Tasmania relating to ‘loss of confidence’.112 This enables a Head of Agency to terminate an employee’s employment where they have lost confidence in the suitability of an employee to continue in their position having regard to competence, integrity, performance, conduct, or loss of community confidence.113

Recommendation 20.1

The Tasmanian Government should, by introducing legislation or through other means, ensure that the State Service Code of Conduct includes the following binding obligations:
1. if a state servant’s conduct creates an unacceptable risk to the safety and wellbeing of children or young people accessing government and government funded services, the State Service disciplinary framework should apply, and termination, suspension or sanction should be available (including being able to terminate employment based on a loss of confidence)
2. in relation to child sexual abuse and related conduct, the requirement that state servants must comply with all applicable Australian law is determined on the basis of a balance of probabilities test and does not require a breach of the law to be determined by a court
3. where a state servant has contact with a child or young person through their work, and an allegation is made of child sexual abuse or related conduct in relation to that child, this contact is sufficient to establish the conduct occurred ‘in the course of employment’ or, in the case of section 9(14), has a nexus to employment regardless of whether the conduct complained of occurred outside the workplace or outside working hours.
The Tasmanian Government should develop policy documents or guidance on the interpretation of the State Service Code of Conduct explaining (among other things):
1. how the required connection between a state servant’s employment and a child and young person should be interpreted in matters that involve child sexual abuse or related conduct
2. explain that all provisions of the Code of Conduct should be interpreted to prioritise the protection of children.

Professional conduct policies

The broad application of the State Service Code of Conduct means it does not contain specific provisions about child sexual abuse. This has led some to call for a separate code of conduct for state servants working in organisational contexts that serve children, particularly in education.114

For example, in their evidence to our Inquiry, Professors Stephen Smallbone and Tim McCormack, authors of the Independent Inquiry into the Tasmanian Department of Education’s Responses to Child Sexual Abuse, told us the State Service Code of Conduct was ‘generic’ and inadequate for the specific context of schools.115 As we note in Chapter 4, in their report, Professors Smallbone and McCormack recommended a separate code of conduct for schools.116

While we agree with the problem identified by Professors Smallbone and McCormack, we are reluctant to recommend a specific code of conduct for each institutional area that serves children. In his evidence, Secretary Bullard was also hesitant to endorse the idea of an education-specific code of conduct due to the current drafting of the State Service Act:

… if I could reflect on the professors’ report, they came back with a recommendation that we should have an education-specific code of conduct, they called it. Our advice is that that would be difficult under the current drafting of the Act because you’re going to end up with duelling codes, but the closer that we can get to describing behaviours that are or aren’t acceptable in a context, the better.117

We are also conscious that developing an institution-specific code of conduct would not be in line with the approach in most Australian jurisdictions, which have one code of conduct applying across the public sector.118

To meet the intent of Professors Smallbone and McCormack’s proposal, we recommend professional conduct policies be instituted in all child-serving government institutions.

These departmental policies should address child sexual abuse, including related conduct such as boundary breaches, grooming and other inappropriate behaviours of a sexual nature, for example, voyeurism, and inappropriate speech and other forms of communication, including electronic communication.119

To ensure disciplinary action can be taken for conduct that breaches these professional conduct policies, the State Service Code of Conduct should be amended to include a provision that stipulates that when a breach of a specified departmental policy occurs, this breach may amount to a breach of the State Service Code of Conduct. This would avoid the situation that currently exists; for example, in education, where a breach of a departmental policy must be shown to amount to a direct breach of one or another of the provisions of the State Service Code of Conduct, such as a failure to act with due care or diligence in section 9(2) or the requirement that employees must behave in a way that does not adversely affect the integrity and good reputation of the State Service in section 9(14).120

We understand that, at the time our hearings concluded in September 2022, the State Service was exploring changes to its Code of Conduct and to disciplinary processes.121 One such potential change was the use of standing orders made under the State Service Act to link specific prohibited behaviours to breaches of the State Service Code of Conduct. Section 34(2) of the Act provides that a Head of Agency can make standing orders for administration and operation of the agency. It is a requirement of the State Service Code of Conduct that an ‘employee must comply with any standing orders and with any lawful and reasonable direction given by a person having authority to give the direction’ [emphasis added] (section 9(6)). However, it appears that, in practice, in the event of a failure to follow a lawful and reasonable direction there does not need to also be a standing order to establish a breach of the State Service Code of Conduct.122

Secretary Gale told us she had asked the State Service Management Office, which is in the Department of Premier and Cabinet and advises Secretary Gale on State Service employment matters, to:

… investigate the use of standing orders for departments which may then make clear the link between certain behaviours that must or must not occur through a standing order that then would make the link between that behaviour and the Code of Conduct quite explicit.123

The standing orders could allow specific behaviours to be proscribed in the particular settings in which they are likely to occur, for example, health, education, out of home care or youth justice. They could allow for specific behaviours to be described and prohibited.

However, we note this approach to regulating misconduct in the State Service was previously attempted in the Department of Education. Documents provided to us show that the Department’s policy document, Professional Standards for Staff, was initially intended to be in the form of a standing order. It was drafted and internally approved as such in 2013 after comprehensive consultation. Before the document could receive final approval from the Premier, the Solicitor-General advised the Department that standing orders could not be used for this purpose.124 We are unclear why this was the case. The consequence of that advice was that Professional Standards for Staff
(and its associated guidelines) became a policy document.125

Even if standing orders can now be used for this purpose, we do not consider there should also have to be a lawful and reasonable direction, in addition to the requirements set out in a professional conduct policy, before there can be a breach of the State Service Code of Conduct. We understand this may reflect current practice.126

To improve how State Service disciplinary processes operate in respect of child sexual abuse allegations and related conduct, we recommend the State Service Code of Conduct be amended to include a provision that a breach of a specified departmental professional conduct policy may be taken to be a breach of the Code, without needing to assess whether a separate provision of the State Service Code of Conduct has been breached.

Content of professional conduct policies

The relevant departmental professional conduct policy should specify what behaviours are, or are not, acceptable regarding the behaviour of their employees towards children and young people. Following the National Royal Commission’s advice on codes of conduct and observations we have made throughout our report (refer especially to Chapters 6, 9, and 12), these departmental professional conduct policies should:

explain what behaviours are unacceptable, including concerning conduct, misconduct or criminal conduct
define and prohibit child sexual abuse, grooming and boundary violations. These definitions should be consistent across departments and should align with the Tasmanian Government’s Child and Youth Safe Organisations Framework established by the Child and Youth Safe Organisations Act 2023 (‘Child and Youth Safe Organisations Act’) and avoid vague terms such as ‘appropriate’ and ‘inappropriate’, unless they are further defined and examples provided
acknowledge the challenge of maintaining professional boundaries in small communities and provide clear identification of, instructions about and examples of how to manage conflicts of interest and professional boundaries in small communities
provide guidance on identifying behaviours that are indicative of child sexual abuse, grooming and boundary violations relevant to the particular context of the organisation
outline the types of behaviours that must be reported to authorities, including what behaviours should be reported to police, child protection authorities, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator of the Reportable Conduct Scheme or other relevant agencies
outline the protections available to individuals who make complaints or reports in good faith
provide and clearly outline response mechanisms for alleged breaches of the policy
specify the penalties for breach, including that a breach of the policy may be taken to be a breach of the State Service Code of Conduct, without needing to assess whether a separate provision of the Code has been breached, and may result in disciplinary action
include a statement that the failure to report a breach or suspected breach
of the policy may be taken to be a breach of the policy
cross-reference any other policies, procedures and guidelines that support, inform or otherwise relate to the professional conduct policy, for example, complaints-handling or child protection policies or other codes of conduct relevant to particular professions.

The professional conduct policies should be:

easily accessible to everyone in the department and communicated
by a range of mechanisms
explained to, acknowledged and signed by all employees
accompanied by a mandatory initial training session and regular refresher training, including as part of professional development training
communicated to children and young people and their families through a range of mechanisms, including publication on the department’s public facing website.127

We consider that professional conduct policies should also outline that sexual relationships between State Service employees and young people are prohibited for a period of two years in certain situations. We note the Teachers Registration Board’s Professional Boundaries: Guidelines for Tasmanian Teachers cautions that a sexual relationship between a teacher and a recent student that occurs within two years of the student turning 18 or finishing compulsory education (whichever is later) will likely result in an investigation by the Board that could result in disciplinary action, regardless of whether the teacher taught that student.128 In assessing the appropriateness of the teacher’s conduct in such cases, the Teachers Registration Board will consider a range of other factors in addition to the time that has passed since the former student ceased to be a student or turned 18. These include:

the age difference between the teacher and the recent student
the emotional and social maturity of the recent student
the vulnerability of the recent student
evidence regarding the nature of the past teacher-student relationship, including the closeness, dependence, significance, and length of the relationship in the educational setting
any other conduct that may impact on the teacher’s good character and/or fitness to teach during the professional relationship with the student.129

Similar imbalances of power and authority may also exist in other contexts where an adult is in a position of authority, care or protection of a child or young person because of the adult’s employment or work. For example, child protection workers, doctors and nurses can have relationships with children and young people that are characterised by authority, care and protection. To guard against the possibility that a relationship between an employee and a young person has developed as a result of a breach of professional boundaries (including through grooming behaviours), we recommend that departmental professional conduct policies include a prohibition on romantic or sexual relationships between an employee and a young person where the employee is in a position of authority, care and protection of the young person for two years after the employee’s position of authority, care or protection has ended or the young person turns 18, whichever is later. This requirement does not displace any other professional and ethical obligations.

In Chapter 16, we discuss the recent introduction of a criminal offence of penetrative sexual abuse of a child or young person by a person in a position of authority. We also consider it important to include provisions regarding the position of authority in the professional conduct policies.

We also consider that a professional conduct policy should make it clear that repeatedly not following reasonable directions is a breach of professional standards (refer to Chapter 14, Case study 3 for an example of Mr Griffin repeatedly failing to follow direction).

Further to these considerations, useful guidance to help protect children and young people in government institutions may be provided by professional conduct policies in other Australian jurisdictions. Tasmanian Government departments should draw on relevant codes of conduct (and any related guidance) in other Australian jurisdictions in drafting professional conduct policies.

Departments should also ensure the professional conduct policy spells out expected standards of behaviour for volunteers, contractors, sub-contractors and other adults where relevant to the specific organisation, and use appropriate mechanisms to ensure volunteers, contractors and sub-contractors comply with the policy.

Professional conduct policies and the State Service Code of Conduct

The approach we recommend—that a breach of a specified departmental professional conduct policy may be taken to be a breach of the State Service Code of Conduct—will allow child and young people-facing government departments to have specific policies tailored to the requirements of their areas of responsibility that can directly ground a breach of the State Service Code of Conduct. In our volumes and chapters on education, health, youth justice and out of home care, we recommend that specific ‘professional conduct policies’ be developed that will ground a breach of the State Service Code of Conduct.

This approach avoids the need to align a breach of a departmental policy with one of the general provisions of the State Service Code of Conduct. If an employee is found, after an investigation conducted in line with disciplinary processes, to have breached the relevant departmental professional conduct policy, then this may be taken to be a breach of the State Service Code of Conduct.

We have heard suggestions that the responsiveness of the State Service Code of Conduct to child sexual abuse matters could be improved by including a specific reference to child sexual abuse or a provision relating to serious misconduct in the Code itself. For example, Secretary Morgan-Wicks wrote that:

In my respectful view the Code of Conduct could be strengthened to include a specific subsection to prohibit violence or abuse against a vulnerable person, grooming behaviours or other behaviours leading to an investigation or charge for the commission of an indictable offence. Suspension with pay could automatically apply and any investigation would depend on the outcome of a police investigation or court proceeding.130

While there is merit in this, and in similar suggestions to amend the State Service Code of Conduct, we consider our recommended approach would provide more flexibility in that it would allow government departments to tailor their professional conduct policies to their institutional contexts but still ground a breach of the State Service Code of Conduct to suit their specific needs and circumstances. And, if required, the departmental policy in question could be amended relatively quickly to account for unanticipated behaviours or consequences, for example, in response to changes in technology-facilitated abuse.

Recommendation 20.2

All Heads of Agencies whose agencies provide services to children should develop a professional conduct policy for the agency’s employees that:
1. explains what behaviours are unacceptable, including concerning conduct, misconduct or criminal conduct
2. defines and prohibits child sexual abuse, grooming and boundary violations, in language consistent with the Child and Youth Safe Organisations Act 2023.
The professional conduct policy should:
1. acknowledge the challenge of maintaining professional boundaries in small communities and provide clear identification of, instructions about and examples of how to manage conflicts of interest and professional boundaries in small communities
2. provide guidance on identifying behaviours indicative of child sexual abuse, grooming and boundary violations relevant to the particular organisation
3. outline behaviours that must be reported to authorities, including what behaviours should be reported to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator under the Child and Youth Safe Organisations Act 2023, or other relevant agencies
4. provide that not following reasonable directions is a breach of professional standards
5. provide that a failure to report a breach or suspected breach of the policy may be taken to be a breach of the policy
6. outline the protections available to individuals who make complaints or reports in good faith
7. provide and clearly outline response mechanisms for alleged breaches of the policy
8. specify the penalties for a breach, including that a breach of the policy may be taken to be a breach of the State Service Code of Conduct without needing to assess whether a separate provision of the Code has been breached, and may result in disciplinary action
9. cross-reference any other policies, procedures and guidelines that support, inform or otherwise relate to the professional conduct policy, for example, complaints handling or child protection policies or other codes of conduct relevant to particular professions.
The professional conduct policies should be:
1. easily accessible to everyone in the agency and communicated by a range of mechanisms
2. explained to and acknowledged and signed by all employees
3. accompanied by a mandatory initial training session and regular refresher training, including as part of professional development training
4. communicated to children and young people and their families through a range of mechanisms, including publication on the agency’s public-facing website.
The professional conduct policies should include a specific prohibition on romantic or sexual relationships between an employee and a young person where that employee has been in a position of authority, care or protection with the young person for two years after the young person turns 18 or the employee’s position of authority, care or protection has ended, whichever is later. This requirement should operate in addition to any other professional and ethical obligations.
Heads of Agencies should ensure the professional conduct policy spells out expected standards of behaviour for volunteers, contractors and sub-contractors, and other adults where relevant to the specific organisation and use appropriate mechanisms to ensure their compliance with the policy.
The Tasmanian Government should introduce legislation, or other binding mechanisms, to ensure:
1. a breach of a departmental professional conduct policy may be taken to be a breach of the State Service Code of Conduct, without needing to assess whether a separate provision of the Code has been breached
2. such a breach does not have to be accompanied by a lawful and reasonable direction for there to be a breach of the Code of Conduct.

Intersection with the Reportable Conduct Scheme

The Child and Youth Safe Organisations Act came into effect on 1 July 2023. As discussed in Chapter 18, the Act introduces the Government’s Child and Youth Safe Organisations Framework, which comprises the Child and Youth Safe Standards and a Reportable Conduct Scheme. In section 7 of the Act, ‘reportable conduct’ is defined broadly, as including:

a relevant offence (these offences are defined in the Act and relate to child sexual offences in the Criminal Code Act 1924)
sexual misconduct, which includes inappropriate behaviour, physical contact, voyeurism and speech or other communication including electronic communication when performed in a sexual manner or with a sexual intention
grooming of a child
conduct that causes or is likely to cause emotional or psychological harm to a child.131

Under the Reportable Conduct Scheme, it is the responsibility of government departments to investigate whether an employee has committed reportable conduct.132
It should be clear that where an employee is found to have committed reportable conduct, this is a breach of the State Service Act. To achieve this, there should be a mechanism to ensure that reportable conduct, as defined in the Child and Youth Safe Organisations Act, is a breach of the State Service Code of Conduct in section 9 of the State Service Act.

Recommendation 20.3

The Tasmanian Government should introduce legislation to ensure that where a finding is made that a State Service employee has committed reportable conduct under the Reportable Conduct Scheme, this also constitutes a breach of the State Service Code of Conduct under section 9 of the State Service Act 2000.

Contractors, volunteers and temporary staff

The State Service Act applies to ‘employees’, who are defined as permanent employees or fixed-term employees.133 This means certain people who perform duties for the State Service, for example, foster care volunteers for the Department for Education, Children and Young People, are not subject to the State Service Code of Conduct.

There are specific policies with which contractors, volunteers and temporary staff must comply. For example, relief teachers were previously expected to comply with the Department’s Conduct and Behaviour Standards, and a failure to do so resulted in removing them or flagging them on the Fixed Term and Relief Employment Register.134 However, this also meant the Department was not obligated to conduct a thorough review of any conduct-related matter. As discussed in Case study ‘Brad’ in Chapter 5, the Department’s response to the matter involving a relief teacher was conducted outside the State Service’s disciplinary processes through a ‘duty of care lens’ and further investigation depended on the relief teacher’s response.135 The inability to treat breaches of departmental policies as breaches of the State Service Code of Conduct because of the employment classification of the person who has committed the breach may not be in the interests of child safety. We have been told by the State that relief teachers are now included in the category of employee covered by the State Service Act.136

Under the proposed Reportable Conduct Scheme, a reportable allegation against a ‘worker’ must be investigated.137 A ‘worker’ is defined in the Act as including someone who is ‘engaged by the entity to provide services, including as a volunteer, contractor … whether or not the person is engaged in connection with any work or activity of the entity that relates to children’.138 To align the Reportable Conduct Scheme with any disciplinary processes, and to protect children, we encourage the State Service to ensure the obligations and provisions of the State Service Code of Conduct apply to contractors, sub-contractors, volunteers and temporary staff. However, the process for terminating employment or applying other sanctions to contractors, sub-contractors volunteers and temporary staff should remain simpler than for terminating the employment of permanent employees.

Recommendation 20.4

The Tasmanian Government should introduce legislation to ensure the provisions in the professional conduct policies apply to contractors, sub-contractors, volunteers and other adults who have contact with children.

Employment Directions

To take disciplinary action against an employee, including for child sexual abuse or related conduct, the Head of Agency must comply with Employment Directions issued by the Premier.139 Relevant to our Commission of Inquiry, Employment Directions provide instruction on how the State Service must manage matters concerning employee misconduct, including suspensions, investigations of alleged breaches of the State Service Code of Conduct, and considerations relevant to whether an employee no longer has the ability to perform their role. The relevant Employment Directions to our Inquiry are:

Employment Direction No. 4—Procedures for the suspension of State Service employees with or without pay (Employment Direction No. 4—Suspension)
Employment Direction No. 5—Procedures for the investigation and determination of whether an employee has breached the Code of Conduct (Employment Direction No. 5—Breach of Code of Conduct)
Employment Direction No. 6—Procedures for the investigation and determination of whether an employee is able to efficiently and effectively perform their duties (Employment Direction No. 6—Inability). This direction may apply when a person no longer has the capacity to perform their role or does not satisfy the minimum requirements for employment, such as registration to work with vulnerable people or professional registration.

These Employment Directions are dated 4 February 2013, and were to be reviewed one year later, but remain current.140 These disciplinary processes must be undertaken at the direction of the Head of Agency, who is the ultimate decision maker. Before any disciplinary process for misconduct under Employment Direction No. 5—Breach of Code of Conduct takes place, there is often what is called a preliminary assessment. As we noted, preliminary assessments are sometimes carried out before the Head of Agency is aware of the allegation.141 Once the preliminary assessment is complete, the information is transmitted to the Head of Agency, who then decides whether the matter should be investigated.

While investigations are initiated and disciplinary measures applied by Heads of Agencies, the Head of the State Service and the State Service Management Office also have a role in the administration of employment-related matters. The Head of the State Service manages employment-related matters in the State Service on behalf of the Minister administering the State Service Act and is responsible for the employment framework and overarching guidelines.142 The Head of the State Service is supported in this role by the State Service Management Office.143

We note that neither the State Service Act nor Employment Direction No. 5—Breach of Code of Conduct mentions ‘misconduct’. Rather, they refer to breaches of the State Service Code of Conduct. However, it is standard practice to refer to a breach
of the State Service Code of Conduct as misconduct and we have adopted that approach.144

Many people who engaged with our Inquiry were critical of the Employment Directions and how they functioned in relation to matters that involve protecting children. We discuss these issues in more detail in this section.

There have been several recommendations to amend aspects of the Employment Directions, particularly Employment Direction No. 5—Breach of Code of Conduct, over the years.145 Documents provided to us show that amendments to the current Employment Directions were drafted in 2016.146 However, these amendments were not implemented. It is unclear why the amendments did not result.

In 2021, the final report of the Independent Review of the Tasmanian State Service recommended that the Government rewrite all Employment Directions.147 In relation to disciplinary processes, the Independent Review concluded that the ‘overly prescriptive’ nature of these processes affected how they were managed, such that ‘the risk associated with taking action is often so high that managers elect not to proceed’.148 Further, the review noted that the ‘top heavy’ nature of misconduct procedures, requiring the involvement of the Head of Agency in many of the steps, led to delays.149

The Government has accepted all the Independent Review’s 77 recommendations and set a five-year implementation period. At the time of writing, it was implementing the first stage of those recommendations, which includes several amendments to Employment Directions.150

The Independent Review’s recommendations about Employment Directions include that:

all unnecessary Employment Directions be revoked and, where required, converted to practice guides or other suitable instruments
the remaining Employment Directions be rewritten as ‘standards-based directions, with increased flexibility for agency decision making and process design’
Employment Direction No. 5—Breach of Code of Conduct be rewritten to be standards-based, and to allow for Heads of Agencies to adapt investigations based on the circumstances of the alleged breach
Employment Direction No. 5—Breach of Code of Conduct be rewritten to allow for ‘a simple, local process to be used where the facts are clear and not disputed and the agency seeks to impose a low-level sanction’.151

While these recommendations are not specifically aimed at issues associated with child safeguarding, they will undoubtedly help to increase the responsiveness of the State Service misconduct and disciplinary processes by ensuring serious matters take precedence for investigation. We also consider there should be further reforms to improve the State’s disciplinary response to allegations of child sexual abuse. The State Service Employment Directions are not well suited to protecting children because they place disproportionate weight on the rights of employees. Under these directions, it is difficult for Heads of Agencies to take action that prioritises the safety of children. To address these concerns, we make several recommendations, including:

formalising the preliminary assessment process
improving Employment Direction No. 5—Breach of Code of Conduct, including increasing the rights of complainants and children, increasing the speed of investigations, ensuring investigations are informed about the nature of child sexual abuse and are child/victim centred, and clarifying that all matters relevant to children should be considered potential serious misconduct
providing for immediate termination of employment in specific situations
allowing for the immediate suspension of staff when there is a risk to child safety
simplifying the process for ending the employment of staff who do not hold requisite registration, such as a working with vulnerable people registration.

We also call for the Head of the State Service to play a more active role in leading the State Service in the conduct of disciplinary processes through providing guidance and advice and undertaking active monitoring and reporting.

Preliminary assessments

Preliminary assessments are not currently part of Employment Directions. However, when misconduct by a state servant is alleged, it is common practice for staff to undertake a preliminary assessment to determine whether to recommend to the decision maker (usually the Head of Agency) to appoint a person to formally investigate the matter under Employment Direction No. 5—Breach of Code of Conduct. Preliminary assessments are used to assess whether the decision maker would be able to form a reasonable belief that there may have been a breach of the State Service Code of Conduct. It is also used to determine the most appropriate way to respond to the conduct in question. A threshold consideration in conducting a preliminary assessment is whether the alleged conduct occurred in the course of the employee’s State Service employment.

The government agencies we examined use preliminary assessments. From the period January 2000 to February 2023, the numbers were:

24 preliminary assessments by the then Department of Communities
48 preliminary assessments by the then Department of Education
9 preliminary assessments by the Department of Health.152

Problems with preliminary assessments

Preliminary assessments seem to have developed to determine whether the threshold for engaging with the formal investigative processes required by Employment Direction No. 5—Breach of Code of Conduct has been reached. While gathering some information is necessary to confirm basic facts about the alleged misconduct or incident, there is a danger that a preliminary assessment can assume the role of a de facto investigation but without independence, appropriate considerations or safeguards for victims and witnesses, and procedural fairness for alleged perpetrators.153 Further, because preliminary assessments are generally not subject to formal rules or policy frameworks, they are usually not subject to specific timeframes.

For example, under clause 7.3 of Employment Direction No. 5—Breach of Code of Conduct, where it is likely that an investigation will require interviewing a child or young person, the relevant Head of Agency must ensure the process is ‘sensitive and appropriate’ to the age, maturity and personal circumstances of the child or young person. Further, before such an interview is conducted, consideration should be given to obtaining appropriate permissions and whether the child or young person should be accompanied by a parent, guardian or other support person.154 None of these requirements apply to preliminary assessments because they are not part of the Employment Directions.

Guidance (and policies) on preliminary assessments

Most of the government agencies we engaged with did not have a specific policy on preliminary assessments, except for the recent introduction of such a policy in the Department of Health (which we discuss next). However, the Integrity Commission provides guidance on conducting preliminary assessments as part of its Guide to Managing Misconduct in the Tasmanian Public Sector.155

Integrity Commission guidance

As part of its 2017 own motion investigation into the management of how misconduct is managed in the public sector, the Integrity Commission produced a model preliminary assessment process and guidance on managing misconduct, including on conducting preliminary assessments.156 It outlines the type of information that might be sought in a preliminary assessment, including time sheets or rosters, emails and personnel files, applicable policies and position descriptions, record access logs, and following up detail with the source of the complaint.157 The guidance stresses it is important that preliminary assessments do not turn into ‘investigations’ and they should be completed quickly: within three working days.158 The Integrity Commission’s guidance also cautions that interviews with anyone other than the source of the complaint should be avoided at the preliminary assessment stage.159

In our view, most of the Integrity Commission’s guidance provides helpful and clear instruction on conducting preliminary assessments. However, it does not account for specific issues that may be raised in matters involving allegations of inappropriate conduct towards children or young people. Our recommendations in this section build on the Integrity Commission’s guidance to ensure that preliminary assessments are conducted in a way that enhances child safety.

We understand the Integrity Commission is currently reviewing the Guide and the associated training module to consider changes in administrative law and good practice, including the need to consider trauma-informed practices and any relevant outcomes of our Inquiry.160

Department of Health

A 2019 audit of the Department of Health’s conduct and investigation and management processes revealed preliminary assessments were taking the form of investigations.
As a result, these preliminary assessments may not have been objective or have involved procedural fairness. This makes the process open to challenge and criticism.161 Whether in response to the audit or otherwise, the Department developed Guidance Notes for conducting preliminary assessments.162

The Guidance Notes emphasise that preliminary assessments are not investigations—their purpose is not to uncover the facts of the matter. Nor should they ‘make findings or arrive at conclusions regarding the alleged conduct’.163 The Guidance Notes specify that preliminary assessments should be completed within three to seven business days. They note that where it is not possible to meet this timeframe, the reasons for the delay may need to be recorded and communicated to the parties.164 The Guidance Notes also provide brief instruction on collecting information. This includes that, most times, witnesses should not be contacted, but further information may be required from the complainant. They also set out the possible courses of action that can be taken when the preliminary assessment concludes, including recommending the delegate of the Head of Agency initiate an investigation.165

While the Guidance Notes do not mention specific considerations relating to
children or young people, an attached preliminary assessment form (for the assessor to complete) has a section relating to allegations of inappropriate conduct towards children. This section instructs that where an allegation involving children or young people is made, the assessor should refer to the Department’s Internal Checklist—Child Related Allegations. Significantly, it instructs that the assessor should consider relevant provisions in Employment Direction No. 5—Breach of Code of Conduct, which, as discussed earlier, require contact with a child to be ‘sensitive and appropriate’. We have been told that the separate notation relating to children is to reflect ‘the Department’s position that an investigation will proceed, the employee be stood down and that such requires immediate action through Human Resources’.166

The form also sets out that a threshold consideration in conducting a preliminary assessment is whether the alleged conduct occurred in the course of State Service employment. This contrasts with the Integrity Commission’s guidance. Their guidance highlights that the State Service Code of Conduct requires conduct ‘in connection with’ employment ‘at all times’ and ‘in the course of’ employment depending on the requirement, including that at all times the employee must act in a way that does not adversely affect the integrity and good reputation of the State Service.167

Department for Education, Children and Young People

The Department for Education, Children and Young People did not appear to have a specific policy about preliminary assessments. Relevantly, the Department’s flowchart, Advice for School Staff—Responding to Incidents, Disclosures or Suspicions of Child Sexual Abuse, advises that, in supporting a child or young person who has suffered sexual abuse, staff should not question or interview the child or young person.
The flowchart further states that Workplace Relations can provide advice about recording information and that a ‘Concern Notice template’ has been developed to help with this process (refer to Chapter 6).168

The former Department of Communities also did not appear to have a specific policy on conducting preliminary assessments. However, Michael Pervan, then Secretary of the Department of Communities, told us the Department had adopted the Integrity Commission’s Guide to Managing Misconduct in the Public Sector when conducting preliminary assessments ‘with a focus on the risk of safety to children and young people’.169 We discuss in more detail in Chapter 11 on Ashley Youth Detention Centre, problems with the preliminary assessment processes in the then Department of Communities. The Department took considerable time to conduct preliminary assessments regarding several employees alleged to have engaged in incidents of child sexual abuse. In some cases, quasi-investigations were conducted, contrary to the Integrity Commission’s guidance.170 In relation to preliminary assessments, in Chapter 11, Case studies 5 and 7, we discuss problems in how the Department approached preliminary assessments, which contributed to delays in responding to serious allegations against staff at Ashley Youth Detention Centre.

Improvements to preliminary assessments

We consider that several improvements should be made to the preliminary assessment process to provide stronger safeguards for children and young people in government institutions. The process of conducting preliminary assessments should be formalised across the State Service in Employment Direction No. 5—Breach of Code of Conduct (refer to Section 6.3). It should be stipulated that preliminary assessments are to be conducted as quickly as possible: within three to five business days. If more time is required, the reasons for the delay should be documented, a new timeframe set, and the reasons for the delay and the new timeframe communicated to the relevant parties. Preliminary assessments should be confined to a basic assessment of the matter and should not require evidence of wrongdoing. Such evidence should be considered and assessed at the investigative stage. Accordingly, interviews should not be conducted during a preliminary assessment. However, if an interview involving a child or young person is necessary at the preliminary assessment stage, then the interview should be subject to the same considerations as those in clause 7.3 of Employment Direction No. 5—Breach of Code of Conduct, including the matters discussed in Section 6.3 and in Recommendation 20.8.

Child-facing departments should develop policies for conducting preliminary assessments that suit their operating environments. These policies should be developed based on our recommendations and in line with the Integrity Commission guidance, where appropriate. Due to the nature of the preliminary assessment process, any such policies should not require procedural fairness to be accorded to the employee. If the outcome of the preliminary assessment recommends an investigation occurs under an employment direction, then procedural fairness will be accorded to the employee during that investigative process. We recommend the Child-Related Incident Management Directorate conducts preliminary assessments in matters involving child sexual abuse and related conduct.

We also consider that the question of whether the alleged conduct occurred in the course of the employee’s State Service employment can involve complex considerations that will not lend themselves to a fast preliminary assessment process. The question of whether conduct occurred in the course of employment is better addressed at the investigative stage in all but the most obvious of cases.171 We also note that our proposed changes to the State Service Code of Conduct will render the focus on a nexus to employment less central.

Recommendation 20.5

The State Service should develop guidance material for conducting preliminary assessments to ensure:
1. they are conducted quickly (within three to five business days after an allegation is received)
2. the reasons for any delay are documented, a new timeframe set, and the reasons for the delay and the new timeframe are communicated to the parties if applicable in the circumstances
3. they are confined to a basic gathering of information and do not require evidence of wrongdoing
4. they do not assess whether the alleged conduct occurred in the course of the employee’s State Service employment.
Victim-survivors and child witnesses should not normally be interviewed at the preliminary assessment stage to avoid them being interviewed more than once or being interviewed by a person without special skills. If it is necessary to interview a child or young person at this stage, then this should be done in line with clause 7.3 of Employment Direction No. 5—Breach of Code of Conduct. Any such interview should be conducted by individuals who have been trained in child development, child sexual abuse (including taking a Whole Story approach), and trauma-related behaviours.
Any engagement with a child or young person during the preliminary assessment stage should be child-centred and trauma-informed.
The Child-Related Incident Management Directorate should conduct preliminary assessments in child sexual abuse or related conduct matters.

Employment Direction No. 4—Suspension

One way to protect children from potential harm is to suspend staff who may pose
a risk to children until a further assessment of risk is determined.

Employment Direction No. 4—Suspension allows a Head of Agency, who believes on reasonable grounds that it is in the public interest to do so, to suspend an employee with full pay if the Head of Agency believes that the employee:

has, or may have, breached the State Service Code of Conduct in such a manner that the employee should not continue to perform his or her duties; or
has been charged in or outside Tasmania with an offence punishable by imprisonment for a term exceeding six months; or
is, or may be, unable to ‘efficiently and effectively’ perform their duties.172

Staff who do not have appropriate professional registration or a working with children registration would satisfy clause (c).

The Head of the State Service may, after considering submissions, suspend an employee without pay.173 Decisions to suspend employees (either with or without pay) must be made on a case-by-case basis. Decisions should consider several factors, including whether:

the breach of the State Service Code of Conduct is ‘of such a serious nature
that it is inappropriate for the employee to continue’; or
it is in the ‘best interests of the public, the Agency, other employees
and the employee being investigated’.174

In terms of child safety in government institutions, we note two key issues
with Employment Direction No. 4:

There are questions about whether the suspension of an employee under Employment Direction No. 4 may occur immediately when misconduct is alleged or suspected; that is, the basis for an employee’s immediate removal is uncertain.
The requirement that the Head of Agency have reasonable grounds to believe that it is in the public interest to suspend an employee is an unnecessary barrier in matters involving child sexual abuse.

These points are discussed next.

Immediate suspension

The immediate removal of an employee from the workplace when there has been an allegation or incident of child sexual abuse is critical. However, there seems to be some uncertainty about the timing of employee suspensions in the State Service and the basis on which an employee is otherwise removed from the workplace.

Employment Direction No. 4 notes that:

[A s]uspension is not a sanction, it is only to be used where an investigation of an employee is underway and proper investigation requires the employee to be absent or where because of the nature of the alleged offence it is not appropriate that the employee remain in the workplace.175

This provision has caused confusion because it appears to suggest that a suspension can only occur once a misconduct investigation has started. For example, it took the former Department of Health and Human Services (which was responsible for child protection and out of home care at the time) 166 days to suspend a rostered carer who was alleged to have sexually abused a 16-year-old girl in care (refer to Chapter 8).176 This may have been partly due to the presumed requirement to conduct an Employment Direction No. 5 investigation before suspending a person for misconduct.

Secretary Gale told us that once a Head of Agency has formed a reasonable belief there may have been a breach of the State Service Code of Conduct, they may suspend the employee on full pay. According to Secretary Gale, this allows Heads of Agencies to:

adopt a zero-tolerance approach to allegations of child sexual abuse and remove employees against whom an allegation has been made from the workplace immediately, to avoid risk to the safety of children and young people [emphasis added].177

However, as discussed, whether a Head of Agency could form a reasonable belief that the State Service Code of Conduct has been breached is subject to a preliminary assessment process that can take several days at best and, as described in our case studies, several months at worst.

Departmental secretaries have (at least, recently) adopted different justifications for immediately removing employees from the workplace. These practices are welcome if they protect children. For example, Secretary Bullard told us that, as Secretary of the Department of Education, he had a ‘duty of care’ to children and young people who were under the care of the Department, indicating this justified an employee’s immediate removal from a site when there had been an allegation or incident of child sexual abuse. He told us it was the Department’s practice that:

in every case where allegations of child sexual abuse are made against a current employee, the employee is requested, as soon as possible, to leave the workplace prior to service of formal documentation. If after initial examination of the circumstances it is concluded that employees may have breached the State Service Code of Conduct, they are then formally suspended in accordance with Employment Direction No. 4 at the same time as an investigation is commenced pursuant to Employment Direction No. 5.178

Regarding the former Department of Communities, then Secretary Pervan and Jacqueline Allen, then Acting Executive Director, People and Culture, told us that Employment Direction No. 4 did not allow them to suspend an employee from duty immediately after an allegation or incident of child sexual abuse was reported or became known.179 Nor, in their understanding, did it allow for suspension to occur while a preliminary assessment was being conducted.180

Secretary Pervan told us that to minimise the risk to children and young people while Employment Directions No. 4 and No. 5 processes are commenced, the employee subject to the allegation was directed to ‘remain away from the workplace’.181 Secretary Pervan told us he had:

an overriding legislative responsibility to manage and eliminate and/or minimise the health and safety risks to children and young people so far as reasonably practicable in accordance with the Work Health and Safety Act 2012.182

So, in then Secretary Pervan’s view, removing an employee from the workplace in the former Department of Communities was justified based on workplace health and safety laws.183

The Department of Health’s approach to the timing of suspension under Employment Direction No. 4 is unclear. The State has advised us that suspensions occur immediately.184 Secretary Morgan-Wicks told us it ‘is Department of Health practice that the respondent is formally advised of suspension pursuant to Employment Direction No. 4 pending further notification of actions to be taken’.185 Secretary Morgan-Wicks further said:

Where an allegation of child sexual abuse is made it is current practice that the Department Official is stood down, giving consideration to duty of care and the risk of the employee continuing in the workplace. This is considered in line with the considerations in section 6.4 of Employment Direction No. 4.

The Department of Health does not currently have protocols or guidelines which cover the period between standing the Department Official down and the formal notification of suspension in accordance with Employment Direction No. 4.186

What is important for the safety of children and young people is that where there has been an allegation or incident of child sexual abuse, the subject employee is immediately removed from the workplace pending the start (or not, as the case may be) of disciplinary processes. We consider the basis on which this can occur should be clear.

We recommend that Employment Direction No. 4 provides for the immediate removal of an employee from the workplace when there is an allegation or incident of child sexual abuse. Suspension should not be contingent on the commencement of disciplinary processes. It should precede them. This will help to keep children safer in government institutions by providing a clear basis for removing employees who are subject to allegations of child sexual abuse from the workplace, while the necessary inquiries are made.

Belief that suspension is in the public interest

As discussed in this chapter, the Head of Agency must have reasonable grounds to believe it is in the public interest to suspend an employee under Employment Direction No. 4.187
In our view, this requirement is superfluous when the allegation or incident involves
child sexual abuse as immediate suspension will almost always be in the public interest. We consider child safety warrants, in matters involving allegations or incidents of child sexual abuse or related conduct, there not being the requirement that the Head of Agency have reasonable grounds to believe it is in the public interest to suspend an employee.

We also note that there are several factors the Head of Agency must consider on a case-by-case basis when deciding to suspend an employee.188 These include the nature of the ‘offence’, the attitude of the public towards the breach and the employee, and the repercussions for the State Service.189 However, there is no requirement to consider the safety of children or young people (or of other employees, for that matter). We consider that child safety should be included as a consideration in making such a decision.

Recommendation 20.6

The Tasmanian Government should amend Employment Direction No. 4—Suspension to:

specify that in matters involving complaints or concerns about child sexual abuse or related conduct of an employee, they may be suspended immediately
clarify, to avoid any doubt, that suspension can occur before the start of any disciplinary processes, including preliminary assessments
exclude, in matters involving complaints or concerns of child sexual abuse or related conduct, the requirement that the Head of Agency must have a reasonable belief that it is in the public interest to suspend the employee
include the safety of children and young people among the matters a Head of Agency must take into account when deciding whether to suspend an employee.

Employment Direction No. 5—Breach of Code of Conduct

Employers must be able to terminate the employment of, or take other disciplinary action against, staff who have harmed or pose a risk to children. Breaches of the State Service Code of Conduct are determined through the investigative processes set out in Employment Direction No. 5—Breach of Code of Conduct, which ‘establishes … the procedures for the investigation and determination of whether an employee, senior executive, equivalent specialist or [an employee] has breached the State Service Code of Conduct’.190

Employment Direction No. 5 stipulates that the powers and functions it grants must not be delegated, except for the Head of Agency for the Department of Health and the Department for Education, Children and Young People.191 It also stipulates that the procedures within it ‘are to be applied with procedural fairness, natural justice and in a timely manner’, noting that ‘timely’ means ‘within a reasonable timeframe and free from unreasonable delay’.192

Where a Head of Agency has reasonable grounds to believe there may have been a breach of the State Service Code of Conduct, Employment Direction No. 5 requires them to appoint an investigator to investigate the alleged breach. Employment Direction No. 5 sets out several requirements for the ensuing investigation, including that:

investigators must be impartial and report to the Head of Agency about the outcome of the investigation
if the Head of Agency becomes aware that an employee has committed certain crimes, they may determine that the State Service Code of Conduct has been breached without first conducting an investigation (the employee must be afforded procedural fairness and natural justice)
if the investigation requires interviewing a child or young person:
the head of agency must ensure that the processes involving the child are sensitive and appropriate, bearing in mind the age, maturity and personal circumstances of the particular child. Before interviewing a child, consideration must be given to such issues as the permission of the parent or guardian, the child being accompanied by a parent, guardian or support person and, where appropriate, keeping the child informed of the progress of the investigation.193

Procedural fairness and the rights of children

Employment Direction No. 5 also sets out other procedural fairness requirements for investigations, such as communicating suspected breaches to employees and informing them of the investigation, their rights regarding the investigation and the possible implications of the investigation.194 There is no mention of the interests of a complainant in the conduct of an investigation. In the case of alleged child sexual abuse or related conduct, this may mean a child or parent does not have an automatic right of reply once the employee’s version of events is presented, although the Head of Agency can request further investigations if new information comes to light.195

Employment Directions are focused on providing employees their right to know the allegations made about them and to answer them (often referred to as procedural fairness or natural justice). This focus stems from an ‘employment relationship’, where the employee is considered to be in the weaker position in relation to the employer: the State. However, this framework poses problems for protecting children in government institutions, who are in a weaker position than an employee within an institution. As explained by Secretary Gale, Employment Direction No. 5:

exists to provide procedural fairness and natural justice to employees …

It does not directly reference rights of the complainant, for example, to be kept informed of any investigation’s progress or outcome.

[Employment Direction No. 5] is not constructed with the primary goal of facilitating a trauma-informed or child-centred investigation process …196

Further, as then Secretary Pervan said, ‘[t]here is a real tension between child protection and natural justice being given to employees and the [Employment Direction] process favours the protection of employees’.197

The tension identified by then Secretary Pervan has not been helped by the fact that Employment Direction No. 5 has not substantially changed over the past 20 years, despite increased awareness of the role of behaviours such as boundary breaches and grooming in child sexual abuse. Despite this, the focus of Employment Direction

No. 5 continues to be on providing procedural fairness to employees. In practice, this has been at the expense of protecting children or providing fairness to complainants.

Affording procedural fairness to employees being investigated under State Service disciplinary processes is necessary and a fundamental principle of our legal system. However, it should not come at the expense of pursuing investigations or considerations of child safety, nor should the pursuit of procedural fairness unduly affect complainants or witnesses.

An employee who is the subject of a misconduct determination also has a right of review. Employment Direction No. 5 provides that if an employee wants to dispute a finding that they have breached the State Service Code of Conduct, and the sanction imposed is termination of employment, ‘the dispute will be dealt with by the appropriate industrial tribunal’, which in this case is the Tasmanian Industrial Commission.198 If the sanction imposed was other than termination of employment, the employee will have a right of review under the State Service Act, which is also heard by the Tasmanian Industrial Commission but under different procedural requirements.199 A complainant or other relevant party does not have a right of review, even when they have been directly adversely affected by the conduct. In our view, this is unfairly biased towards the rights of the employee. The correct forum for a right of review for such a complainant is a complex legal question we have not attempted to solve here, focusing instead on the need for the right of review.

Our recommendations that investigations into employee misconduct be conducted by the Child-Related Incident Management Directorate will help to ensure that the ‘tension’ between procedural fairness and the needs and concerns of complainants and witnesses is appropriately addressed, particularly in matters involving child sexual abuse (refer to Recommendations 6.6, 15.17 and 20.8). This is because we recommend the Directorate conducts investigations that consider child safety as well as disciplinary measures. We have also recommended expanding the State Service Code of Conduct so that if a state servant’s conduct creates an unacceptable risk to the safety and wellbeing of children or young people, the State Service disciplinary framework should apply. Termination, suspension or sanction should be available. The disciplinary framework should ensure that departmental professional conduct policies address behaviour that may pose a risk to children.

We have been advised the State is currently reviewing and rewriting Employment Direction No. 5.200 We consider that the Employment Directions should be amended to protect the rights of children and complainants, particularly to afford children and complainants a right of reply and review.

We also note the importance of conducting investigations, even if an employee has resigned prior to the initiation of an investigation, to ensure the safety of children and young people is prioritised. For example, we heard evidence from Alana Girvin, the former Director, Incident Management Directorate, Department for Education, South Australia, that in South Australia, if a person resigns, the investigation continues. A determination of their suitability is made on the evidence before the Directorate. A prompt is included on their system, and notifications made to the Catholic or independent systems, public sector, Commissioner of Public Sector and other jurisdictions.201

Anonymous complaints

People affected and other employees may be discouraged from making a complaint about an employee’s conduct because they are concerned they will be identifiable to that employee. We heard from people who believed they were targeted by an employee because the person making the complaint was revealed to the employee.202 At our stakeholder consultations in Launceston, we were told one of the problems with Launceston General Hospital’s approach to complaints included allowing the identity of the person making a complaint to become known.203 The State has since advised that the State-wide Complaints Management Overview unit has been established and the identity of complainants is kept strictly confidential.204

We do not consider that the complainant’s identity must be revealed, although it appears to have been the practice.205

It is unclear why this practice has emerged. Employment Direction No. 5 requires a Head of Agency to write to an employee who is the subject of a complaint to inform them of the substance of the complaint. ‘Substance’, in this context, means ‘the essential elements that have given rise to the allegation of the breach of the Code and the specific parts of the Code allegedly breached’.206 The Employment Direction does not specify that the respondent be informed of the identity of the person making the complaint (or witness). The Integrity Commission’s guidance on managing misconduct states that people (complainants) should be told that while confidentiality cannot be guaranteed, it should be maintained as far as possible. In a small jurisdiction such as Tasmania, where ‘everyone knows everyone else’, maintaining confidentiality, while difficult, can ensure people are not discouraged from coming forward to make a complaint.207

It is not intended that all witness statements produced for an investigation must be provided to the respondent in full to ensure procedural fairness. The Integrity Commission’s guidance cautions that ‘decisions about what to give or show the respondent needs to be balanced against other considerations’, including ‘confidentiality, privacy, security risks, and legal professional privilege’.208 Departmental advice about Employment Direction No. 5 to principals and managers in the Department for Education, Children and Young People states that ‘[c]onfidentiality is critical to maintain the integrity of the process, provide privacy and protect all those involved’.209

In this chapter, we recommend that, in any investigation of alleged misconduct, government agencies should ensure they have appropriate measures to protect, where possible, people, including witnesses, who come forward with complaints or concerns. These measures should include the ability to make anonymous complaints in cases of child sexual abuse and related conduct, and clear guidance about maintaining confidentiality. We recognise there may be limitations with progressing an anonymous complaint, for example, where there is insufficient information or details outlined in the complaint to conduct an investigation. We also acknowledge the challenges the State faces where allegations are contained in information not specifically designed for conducting a disciplinary process. However, these difficulties should not prevent the State from pursuing an investigation of the allegations to the extent it is possible to do so.

Timely investigations

Disciplinary processes in relation to child sexual abuse and related conduct matters often take too long to resolve, leaving children or young people exposed to potential risks.210 We heard of significant delays in starting investigations or where, once started, investigations took too long to complete. For example:

There have been delays in the initiation of Employment Direction No. 5 investigations of employees at Ashley Youth Detention Centre.
The original investigation into victim-survivor Rachel’s matter by the Department of Education took more than two years to complete. Rachel told us the length of the investigation had a devastating effect on her.211

Not only do long investigations leave children other than the particular child affected exposed to risks, but they can be distressing and retraumatising for the person affected and witnesses. Delays can also be distressing for those under investigation.

In our hearings on education, Secretary Bullard told us that timeframes were not placed on Employment Direction No. 5 investigations when independent investigators were appointed.212 However, Secretary Bullard later advised us that the Department had changed this practice to require the investigator to provide an expected timeframe to be met. Further, the Department now provided guidance on seeking extensions, and required investigators to provide monthly updates.213

We commend these changes and consider that the requirement to set timeframes for conducting investigations should be included in Employment Direction No. 5—Breach of Code of Conduct. Instructions for seeking an extension for the investigation should also be incorporated into Employment Direction No. 5. All relevant parties should be kept informed of the progress of the investigation and, in the event of any delays, informed about revised timeframes for its completion. Heads of Agencies should report

to the Head of the State Service on compliance with these timeframes, and the Head of the State Service should monitor and publicly report on this compliance.

Prioritising serious misconduct

Another problem with the State Service disciplinary processes is that Employment Direction No. 5—Breach of Code of Conduct is used for all misconduct matters, regardless of their seriousness. As noted, there is a ‘one-size-fits-all’ approach to investigations in the State Service. This means that the investigation of minor misconduct matters can use up vital resources and lead to delays in investigations. Secretary Webster told us:

I think, if some of the lower-level Code of Conduct issues were able to be dealt with more easily, then it would free up time and expertise to be able to focus on the more serious level of Code of Conduct issues that do require trauma-informed practice …214

At the time of writing, the Government was in the process of implementing the recommendations of the Independent Review of the Tasmanian State Service. Relevantly, the Independent Review has recommended that Employment Direction No. 5 be rewritten ‘to allow for a simple, local process to be used where the facts are clear and not disputed and the agency seeks to impose a low-level sanction (that is, reprimand or that the employee engages in counselling for their behaviour)’.215 We support this restructuring of Employment Direction No. 5 in this way, as long as there is robust record keeping in any such ‘local process’, as discussed in the following section.

There is a risk in this approach that grooming and boundary breach behaviour may not be treated as serious. We discuss, in our institution-specific chapters, examples of cases where such behaviours were not taken seriously enough in institutions (such as James Griffin’s case study in Chapter 14 and Brad’s case study in Chapter 5). To avoid this risk, we recommend that all concerns about a staff member’s interactions with a child or young person that could constitute grooming, a boundary breach or other related conduct be treated as potential serious misconduct.

Record keeping and monitoring

A key way to improve responses to child sexual abuse in government institutions is to ensure that accurate and comprehensive records are kept in relation to employee misconduct. In the context of employee misconduct (whether the misconduct be alleged, suspected, substantiated or unsubstantiated), a lack of appropriate record keeping can lead to a failure to identify and, therefore, respond to risks to the safety of children in government institutions, including when there is a pattern of behaviour.216

As noted, the Integrity Commission conducted an own motion investigation into misconduct in the State Service.217 The investigation report recommended that public authorities:

maintain an appropriately confidential register of all alleged and suspected misconduct committed by public officers.

This is to include all misconduct matters, including those that do not proceed to investigation and those that are not substantiated.218

As the Integrity Commission recognised, such a register would help to identify multiple allegations made against an employee over time.219 Importantly, maintaining a record of all allegations, whether substantiated or not, would also help to identify patterns of behaviour associated with child sexual abuse.

In materials provided to us, it appeared the Government supported this recommendation in principle.220 However, it noted that a central register would only be supported for concluded investigations—it was suggested that unsubstantiated allegations ‘be addressed at an agency level’.221 Although the status of the document containing this information is unclear, it stated that the revision of Employment Direction No. 5—Breach of Code of Conduct would reference ‘maintenance of a central register for defined and proven breaches’. In 2022, the Government introduced a register for breaches of the Code of Conduct. However, the register only includes matters where an investigation under Employment Direction No. 5 has resulted in termination of employment.222

We support this development. However, considering state servants move across departments, we consider there should be a cross-government register of misconduct investigations for serious and non-serious misconduct, not just for matters that result in termination of employment, or would have resulted in termination of employment had the employee not resigned. We understand the State Service Management Office considered such a register in response to the Integrity Commission’s 2017 own motion investigation report.223 We consider that this important initiative should be implemented.
Any such register should include a record of unsubstantiated matters, including those that did not proceed to any sort of investigation. The Heads of Agency should report quarterly to the Head of the State Service about these matters. The Head of the State Service should report on misconduct across the State Service in their annual report.

Using evidence of past concerns or allegations—substantiated or not

As discussed, keeping a record of all misconduct-related matters is important to help identify patterns of behaviours. When an allegation is made, evidence of allegations of prior misconduct, whether substantiated or not, may lend weight to the assessment of whether misconduct has occurred. However, during our Inquiry, we understood there was concern (and confusion) in some government departments about the ability to use evidence of alleged prior misconduct in any investigation into a new allegation of employee misconduct. The State has since advised us that any relevant prior conduct will either be part of an allegation or be considered when determining the sanction.224

Whether evidence of prior concerns or allegations can be used in other misconduct matters does not appear to be well understood in the State Service. Evidence provided to us showed that government departments, and sometimes staff in the same department, took different approaches to this issue (and, consequently, different justifications for the use or non-use of prior conduct).

For example, in relation to Walter (a pseudonym)—a former employee at Ashley Youth Detention Centre who was the subject of at least 19 allegations before his resignation, and subject to disciplinary action on multiple occasions—then Secretary Pervan conceded that the inability to use information about prior disciplinary processes as well as information held by the Department as a result of allegations raised through redress claims was a ‘system failure’.225 He also told us that the wording of Employment Direction No. 5 itself provided the basis for the restriction on using prior allegations:

it appears that the focus [of Employment Direction No. 5] is on allegations and those particulars, so if we’re talking about bringing in other matters, the only way you could bring them in would be to add them as separate allegations, and have the whole lot investigated.226

In Chapter 14, we note the views of two former human resources staff members at Launceston General Hospital were that they were unable to consider unsubstantiated complaints or concerns cumulatively in disciplinary proceedings. Mathew Harvey, former Human Resources Consultant with the Department of Health, told us he was unable to use the content of previous unsubstantiated allegations as evidence in misconduct proceedings. He told us that this position had been confirmed by the Tasmanian Industrial Commission in a matter he had attended.227 On the other hand, James Bellinger, former Human Resource Manager at the Department of Health told us in his statement that previous allegations of misconduct were considered in new matters to establish whether there is a pattern of behaviour.228 However, Mr Bellinger did not specify whether this included unsubstantiated allegations.

Secretary Morgan-Wicks advised us she was establishing a complaints management oversight unit (‘Statewide Complaints Oversight Unit’) in the Office of the Secretary.229 She said the unit will be responsible for recording and tracking the progress of complaints in a document management system, assessing complaints against previous complaints, and allocating the complaint to an appropriate business unit for action after identifying any potential conflicts of interest.230

The Solicitor-General’s office has advised that, during investigations, procedural fairness to the employee under investigation requires that:

[c]are must be taken to ensure the investigator does not have reference to any previous complaints with respect to the employee. That information would be irrelevant to the determination of the current investigation and could arguably adversely affect the employee’s right to procedural fairness and natural justice.231

An approach excluding previous allegations appears to be influenced by the principles relating to the admission of tendency evidence in criminal trials. This approach is ill-suited to disciplinary proceedings and may result in risks of child sexual abuse not being sufficiently addressed. There is, at the least, confusion about whether prior concerns, complaints or allegations about an employee, whether substantiated or unsubstantiated, can be used in future misconduct proceedings. Variation in approaches to investigations is undesirable in and of itself. But it is more concerning that a valuable way to identify patterns of behaviour that may point to child sexual abuse is not being used, or at least is not being uniformly used, in relation to State Service disciplinary matters. We consider the safety of children in government institutions demands more. It requires a consistent approach—one that allows patterns of behaviour to be identified and used, where necessary, as evidence of that behaviour in future disciplinary proceedings.

In our view, where there are allegations of child sexual abuse and related behaviours, it is critical that prior substantiated and unsubstantiated complaints, allegations and disciplinary action, as well as suspected misconduct, can be considered both by the investigator and the Head of Agency. Any weight given to previous unsubstantiated concerns should consider that they have not been substantiated.

The Integrity Commission told us that prior allegations (including unsubstantiated allegations) should be considered at various stages of the disciplinary process, including:

in determining the process to be used to deal with new allegations
at the finding stage in determining, on the balance of probabilities, whether the conduct occurred—previous substantiated allegations should have more weight than unsubstantiated allegations
in determining if misconduct has occurred
the sanction to apply.232

We agree with this approach.

We understand there may be procedural fairness concerns about using prior matters in this way. However, these concerns would be addressed by amending clause 7.4 of Employment Direction No. 5—Breach of Code of Conduct to include a requirement that the Head of Agency notify the employee that any prior complaints, allegations and disciplinary action will be provided to the investigator and by putting the substance of these former complaints to the employee. Further, amending clause 7.9 of Employment Direction No. 5 to require that the investigator’s report to the Head of Agency detail any reliance on prior complaints, allegations and disciplinary action would also help to address procedural fairness concerns. In this respect, we note that the investigator’s report must be provided to the employee, and the employee is to be afforded an opportunity to respond to the report (refer to clause 7.10 of Employment Direction No. 5).

Summary dismissal

To protect children, it may be appropriate to summarily dismiss an employee for misconduct in some circumstances.

Currently, Employment Direction No. 5—Breach of Code of Conduct allows an employee to be dismissed without investigation where they have been convicted of a crime that is ‘punishable by imprisonment for a term of 6 months or more’.233 Clause 9(d) of the Tasmanian State Service Award enables the summary dismissal of an employee for serious misconduct or serious neglect of duty. The Independent Review of the State Service has recommended that the State Service adopt the Fair Work approach to serious misconduct. Under Fair Work regulations, misconduct is defined as ‘wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment’.234 It is also defined as conduct that causes a serious and imminent risk to the health or safety of a person.235

According to the Independent Review, the test for termination of employment based on serious misconduct under the Fair Work framework is:

whether the reason for the termination was ‘sound, defensible or well founded’. The employer must be satisfied on the balance of probabilities that serious misconduct has occurred (a standard lower than criminal charges) and that summary dismissal is not a disproportionate response.236

We support this recommendation in principle because it may help to streamline the disciplinary process in uncontested cases of serious misconduct, and free up time and other resources. However, we note that in matters involving child sexual abuse, investigations can uncover important matters that may not otherwise be discovered, including that other children have been harmed or that systemic reform is needed. Even if an employee is summarily dismissed, the Child-Related Incident Management Directorate should still investigate to determine if other children were exposed to risks and if system changes are required.

Interviewing children

As noted, Employment Direction No. 5—Breach of Code of Conduct sets out matters
that must be considered when interviewing a child or young person. Chapter 16 sets out the best practice approach to interviewing children and young people in the context of police investigations. In Chapter 6, we discuss how these principles should be extended to the interviewing of children by the Child-Related Incident Management Directorate we recommend. In summary, these principles include that interviewers should have appropriate qualifications and training in dealing with matters involving child sexual abuse and should:

take a ‘whole story’ approach to interviewing victim-survivors or witnesses, to allow for a pattern of behaviour to be apparent
ensure the environment of the interview is comfortable for the child or young person
minimise multiple interviews through techniques such as video recordings.

These principles should also apply to investigations conducted in the employment disciplinary context for investigating child sexual abuse or related conduct. In addition to the considerations already required by Employment Direction No. 5 clause 7.3, we recommend it be amended to include these principles.

Recommendation 20.7

The Tasmanian Government should ensure investigations into misconduct in relation to child sexual abuse or related conduct by State Service employees of the Department for Education, Children and Young People and the Department of Health under Employment Direction No. 5—Breach of Code of Conduct are conducted by the Child-Related Incident Management Directorate.

Recommendation 20.8

The Tasmanian Government should amend Employment Direction No. 5—Breach of Code of Conduct, as it relates to child sexual abuse or related conduct, to:

ensure people making a complaint and children or young people who have been abused have the right to
1. reply to any factual matters put forward by the alleged abuser
2. know the outcome of an investigation
3. seek a review of decisions in an appropriate forum
clarify timeframes for carrying out investigations, set out the process for seeking an extension of time for an investigation and the considerations involved, and require the granting of, and reasons for, an extension of time be communicated to the parties affected
provide that all matters of concern relevant to an employee’s conduct with a child or young person pertaining to child sexual abuse or related conduct be treated as potential serious misconduct
note the importance, in circumstances where it is appropriate to summarily dismiss an employee for misconduct, of conducting an investigation to identify children who have been harmed and any systemic problems that need to be addressed
ensure investigations are conducted by people who have been trained in child development, child sexual abuse (including taking a Whole Story approach) and trauma-related behaviours.

Recommendation 20.9

The Tasmanian Government should maintain a central cross-government register of misconduct concerning complaints and concerns about child sexual abuse and related conduct. This register should contain records of substantiated and unsubstantiated matters, including those that did not proceed to investigation.

Recommendation 20.10

The Tasmanian Government should take measures to ensure that misconduct investigations under Employment Direction No. 5—Breach of Code of Conduct in relation to complaints and concerns of child sexual abuse are able to take into account prior substantiated, untested and unsubstantiated complaints, allegations and disciplinary action, in addition to the immediately alleged misconduct.
The Tasmanian Government should take measures to ensure that prior allegations (including unsubstantiated allegations) should be considered at various stages of the disciplinary process, including in determining:
1. the process to be used to deal with new allegations
2. whether the conduct occurred on the balance of probabilities, with previous substantiated allegations being given more weight than unsubstantiated allegations
3. if misconduct has occurred
4. the sanction to be applied.

Recommendation 20.11

The Head of the State Service should monitor and publicly report annually on the management of misconduct matters related to child sexual abuse or related conduct.
Heads of Agencies should report quarterly to the Head of the State Service on all misconduct matters related to child sexual abuse or related conduct, substantiated and unsubstantiated.

Employment Direction No. 6—Inability

Another way to help protect children in institutions is to require staff to have a working with vulnerable people registration. In addition, some staff such as teachers and health practitioners are required to have professional registration, which contains suitability requirements related to protecting the public. When staff no longer hold these registrations, employers need to be able to act.

Employment Direction No. 6—Inability allows for investigation of whether an employee can perform their duties, where the Head of Agency has reasonable grounds to believe that an employee may not be able to do so. Government departments can rely on Employment Direction No. 6 where an essential requirement of the employee’s role has been suspended or revoked, for example, where their registration to work with vulnerable people or professional registration has been revoked.

Under Employment Direction No. 6—Inability, when the Head of Agency forms the requisite belief, an investigator must be appointed to investigate the alleged inability.237
If the investigation finds the employee is unable to perform their duties, the employer can take one or more of the following actions:

direct appropriate counselling
direct appropriate retraining
reduce salary within the range of salary applicable to the employee
reassign duties
reduce classification
terminate employment.238

Ms Allen, former Acting Executive Director, People and Culture, Department of Communities, explained the Employment Direction No. 6—Inability, as follows:

For allegations of professional boundary breaches, grooming behaviours or child sexual abuse, an investigation pursuant to [Employment Direction No. 6] is usually only appropriate in certain circumstances. For example, if an employee no longer holds one of the Essential Requirements to perform their duties, such as Registration to Work with Vulnerable People. By not holding a legislative requirement, the head of agency could form reason to believe that the … official could not efficiently or effectively perform their duties and therefore commences an investigation.239

We understand that, in addition to the former Department of Communities, the Department of Education and the Department of Health have relied on this Employment Direction in matters related to allegations of child sexual abuse or related conduct where an essential requirement of the employee’s role has been suspended or revoked.240

In our view, appointing an investigator who must then adhere to strict processes is unnecessary if their role is simply to establish that an employee no longer has a certification required for their continued employment. As the Independent Review of the State Service noted, the investigative processes required by Employment Direction No. 6 are more suited to alleged inability due to reasons other than a loss of accreditation, for example, inability due to some form of physical or mental impairment.241

We agree with the Independent Review of the State Service that a separate, simplified, process should apply to the loss of an essential employment requirement under Employment Direction No. 6. If the requirement is needed so that the employee can work with children or young people, once it is established that the employee no longer satisfies the requirement (other than for administrative reasons, for example, a failure to pay a fee), then the Head of Agency should be able to terminate the employee.

Recommendation 20.12

The Tasmanian Government should introduce legislation to amend Employment Direction No. 6—Inability to provide for:

a simplified process that applies to matters where the employee no longer has an essential employment requirement (for example, no registration under the Registration to Work with Vulnerable People Act 2013)
powers to immediately terminate a person’s employment if the employee no longer meets an employment requirement for working with children or young people
any interview with a child or young person in line with Employment Direction No. 6—Inability to be subject to the same considerations as should apply under clause 7.3 of Employment Direction No. 5—Breach of Code of Conduct (Recommendation 20.8).

Advice and guidance

As is clear, there is confusion about the meaning of some provisions in the Employment Directions. Some people who engaged with our Inquiry suggested a guideline and procedures document should be developed to supplement the Employment Directions with ‘overarching principles and specific guidance on approaches, responses and action’.242

We consider our recommendation that misconduct matters be investigated by the Child-Related Incident Management Directorate will help to resolve many uncertainties or confusion regarding the application of Employment Directions. However, we also consider that general guidance on the relevant considerations, applications and principles involved in State Service disciplinary processes will help to strengthen the safety of children and young people in government institutions. They will help by providing clear and consistent messages across the State Service about what is expected when misconduct issues arise, particularly for those involving child sexual abuse.

Earlier, we briefly noted the role that the Head of the State Service plays in public sector employment matters. Secretary Gale, Head of the State Service, described her role as being responsible for the employment framework and overarching guidelines with the State Service.243 We also note that Heads of Agencies can seek advice from the State Service Management Office ‘on matters relating to the approach of Employment Direction No. 5, and in relation to previous cases’.244 Given this, we consider the Head of the State Service and the State Service Management Office are well placed to develop and implement guidelines and advice in relation to State Service disciplinary processes.

As noted, the Integrity Commission’s Guide to Managing Misconduct provides helpful instruction on conducting preliminary assessments. It also provides useful and instructive information about managing the whole disciplinary process in the State Service. However, we consider the Head of the State Service and State Service Management Office are best placed to know what issues, including those we have identified in our report, require further explanation and guidance.245

Therefore, we recommend that guidance is developed on State Service disciplinary processes, containing key principles and procedures to be followed regarding Employment Directions. This guidance should be in line with any relevant child safety considerations, the relevant recommendations in our report and the guidance the Integrity Commission developed.

General principles relevant to handling complaints in government agencies, particularly in relation to complaints involving child sexual abuse and related conduct, could be included in the guidance.

Recommendation 20.13

The Head of the State Service should issue guidance on State Service disciplinary processes that contains key principles and procedures to be followed. This guidance should include information on:
1. the steps involved in the process of dealing with disciplinary matters
2. maintaining confidentiality
3. setting timeframes for investigations and communicating timeframes to the parties
4. preliminary assessments
5. employee suspensions, in particular where matters are alleged to involve child sexual abuse
6. considerations when interviewing children
7. an employee’s inability to perform a role due to the loss of employment requirements
8. the rights of an employee and any complainant.
This guidance should be developed in line with relevant child safety considerations, relevant recommendations of this Commission of Inquiry and the Integrity Commission’s Guide to Managing Misconduct in the Tasmanian Public Sector.

Cultural change

We heard evidence from the Head of the State Service Secretary, Jenny Gale, that, particularly regarding Employment Direction No.5—Breach of Code of Conduct, behaviour had largely been driven by custom and practice. She said:

[I]t’s one thing to enable through processes, legislation, and so on, but it is another to change the way in which people behave.246

Secretary Gale indicated her belief there was ‘a lot more flexibility within it [Employment Direction No. 5] currently than people are using’.247 She highlighted the importance of cultural and education initiatives in disciplinary process reform to ensure that risks to children were at the centre of State Service thinking.248 Secretary Gale suggested the need for improvement in areas such as:

modelling of agency values by senior leaders
ensuring employees felt supported and encouraged when reporting improper conduct
having confidence there would be no repercussions for making any reports.249

We agree that, besides legislative and policy framework reforms, it is critical to ensure a cultural shift in the State Service’s interpretation and application of disciplinary processes. Anyone reporting improper conduct must feel supported, safe and encouraged and should not face repercussions. It is vital for staff to not only understand the disciplinary process and proposed reforms but actively and willingly foster a culture that promotes the safety and protection of children. We recommend funding for cultural change and educational initiatives to promote disciplinary practices that prioritise the safety and wellbeing of children and young people.

Recommendation 20.14

The Tasmanian Government should allocate funding for initiatives aimed at cultural change and awareness raising to promote a shared understanding and application of disciplinary processes across the State Service in a manner that ensures the safety and wellbeing of children at risk of child sexual abuse or related conduct.

Role of unions

Unions can have an important and influential effect on child safety matters in government workplaces, through advocacy on behalf of members who are subject to State Service disciplinary processes and by fostering a culture in the union that prioritises the safety of children and young people. In our hearings, Professor Richard Eccleston, University of Tasmania, noted that:

… in terms of the important work that unions do in protecting and defending employee rights, that they too must be, and I’m sure are willing to be, part of the solution in terms of dealing with some of these issues around conduct and criminal abuse.250

To make the proposed changes we recommend to disciplinary processes, the Government will need the support of unions.

Throughout our Inquiry, we received evidence from several unions with membership in the Tasmanian State Service. These unions, and the officials that provided statements and evidence on their behalf, include the:

Australian Education Union (Tasmanian branch)—Steven Smith, Senior Industrial Advocate
Australian Nursing and Midwifery Federation (Tasmanian branch)—Emily Shepherd, Branch Secretary
Health and Community Services Union (Tasmanian branch)—Lucas Digney, Assistant State Secretary
Community and Public Sector Union (State Public Service Federation Tasmania) Inc—Thirza White, General Secretary.

Their evidence covered union approaches to child sexual abuse generally as well as how matters involving individual members who were subject to allegations were handled (particularly in health). The focus of this section is on how the unions with which we engaged generally approach child sexual abuse matters. Our case study chapters discuss union involvement in individual matters. Nothing in this discussion is intended to undermine the fundamental role of unions in protecting individual and collective employee rights.

Union policies and approaches to child sexual abuse matters

The materials we received in relation to unions revealed the variability in how they approached matters involving members who were subject to allegations of child sexual abuse. There appeared also to be considerable variance in the general approaches of unions to child sexual abuse. Some were proactive and developed policies and publicly available position statements about child sexual abuse, while others did not provide evidence of any materials that addressed this issue and were primarily focused on advocating in their members’ interest, rather than considering issues raised by child sexual abuse matters.

Australian Education Union

Steven Smith, Senior Industrial Advocate with the Australian Education Union (Tasmanian branch) told us that the branch’s perception was that child sexual abuse allegations against teachers in Tasmania are a significant issue.251 Mr Smith told us the branch supported ‘roughly one or two members a year’ who have been the subject of a Department of Education investigation into allegations relating to child sexual abuse.252 We were told the support provided in this context was primarily to ensure the members’ rights were respected throughout any investigative processes.253 Mr Smith told us that while providing support to a member would be similar for all matters, where there are allegations of child sexual abuse, the union’s ‘focus is heightened’.254 Mr Smith said that this heightened focus was because:

Firstly, … the potential consequences for the member include termination, loss of career, and criminal prosecution. Secondly, … because we are concerned to ensure that, as we support our member, we do not act in a way that could add to the child or children’s trauma. Thirdly, the nature of these matters is that there is a natural desire to not risk letting an abuser to stay at work; this is appropriately part of the pressure on the decision maker.255

Mr Smith told us that the branch takes a neutral position in supporting members where allegations of child sexual abuse have been made against its members. He said the support provided is limited to helping the member navigate investigative processes. The focus of the support is on the member’s welfare. Mr Smith said that if a member were to admit wrongdoing regarding the allegations, then the branch would cease to support the member.256 He also told us that, in terms of supporting members, the union had so far never refused to support a member, even where child sexual abuse was alleged.257

Counsel Assisting our Commission of Inquiry asked Mr Smith whether he would characterise the union’s support for its members in this context as falling short of advocacy, to which Mr Smith replied:

Most of the time, yes. There are some occasions where we might step into a more advocacy role, but generally speaking we’re trying to get them to advocate for themselves.258

When asked whether it would be appropriate to assume an advocacy role where there were allegations of child sexual abuse against a member, Mr Smith told us that, in those circumstances, the union’s role would be in relation to advocating about deficiencies in the investigative process.259

The branch told us that it had developed a set of guidelines in 1999 that broadly outline notification responsibilities in relation to suspected child abuse. The guidelines were updated in 2004 to account for changes to mandatory reporting. This guidance document was not provided to us.

Mr Smith indicated the union is willing to ‘be part of the solution’ to issues concerning misconduct and child sexual abuse.260

Australian Nursing and Midwifery Federation (Tasmanian branch)

Emily Shepherd, Branch Secretary, Australian Nursing and Midwifery Federation (Tasmanian branch), told us the role of the Federation is to protect and promote the interests of its members and to ‘provide professional, industrial and political leadership for the nursing and midwifery industries and the health sector’.261

In 2007, the Federation developed a National Position Statement on Child Abuse and Neglect that sets out what it considers best practice in protecting children who have

been subject to abuse.262 This position statement was last reviewed and re-endorsed in 2019.263 It includes:

recognition of the harm that is caused by child abuse
requiring that nurses and midwives are able to assess, identify, report and implement intervention strategies where child abuse is suspected
recognising the duty of care that nurses and midwives have to children
and young people and that they have statutory notification obligations
requiring employers to have in place policies, protocols and reporting guidelines ‘that support a culture of reporting when children, adolescents and young adults are at risk of abuse or neglect’
advocating that community education be provided to raise awareness about child abuse and that sufficient funding for investigations into alleged abuse be provided by governments.264

In our hearings, Counsel Assisting our Inquiry explored the role of the Australian Nursing and Midwifery Federation in the events that had occurred at Launceston General Hospital, where James Griffin, who was a nurse on Ward 4K (the former Paediatric Inpatient Unit) and a Federation workplace delegate, was accused of child sexual abuse perpetrated over a long period (refer to Chapter 14). In response to revelations about the allegations of child sexual abuse against Mr Griffin after his death, Ms Shepherd told us:

… at that time we were shocked and horrified and certainly felt it was appropriate to undertake [an] immediate review to understand if there was any indication that [Australian Nursing and Midwifery Federation] had any knowledge of these allegations so that we could obviously examine our own systems and processes to make sure that we did address those allegations appropriately.265

Ms Shepherd told us that, in response to the revelations about Mr Griffin, the Federation implemented changes to its workplace delegate processes, including to inform members that if they have concerns about a delegate (or a nominee for appointment as a delegate), they should raise those concerns with the Australian Nursing and Midwifery Federation.266 However, Ms Shepherd conceded that encouraging members to raise concerns about nominees or incumbent delegates may not be enough to ensure that the Federation is made aware of any issues. To that end, she told us the Federation had developed and implemented a mandatory training policy for its staff in 2022. Ms Shepherd said:

We have implemented a mandatory training policy internally to encourage our staff to raise concerns if any are made in relation to abuse of children, child sexual assault, et cetera …

[W]e have reflected on the events of James Griffin and our support of members on Ward 4K, and we felt that it was important that we needed to be looking at our systems and our processes and understanding that, although we didn’t have any knowledge of reports of inappropriate conduct or anything untoward, any disciplinary matters involving James Griffin, we felt that we needed to reflect and look at our systems to make sure that our systems and our policies were absolutely in line with best practice to support our staff in supporting members in these situations.267

We are encouraged by the broad, practical approach to child safety matters adopted by the Federation. We discuss the role that the Federation played in Mr Griffin’s case in more detail in Chapter 14.

Health and Community Services Union

The Health and Community Services Union seems to have maintained a more traditional, industrial relations advocacy approach to its members who have been accused of child sexual abuse and related conduct.

Lucas Digney, Assistant State Secretary of the Health and Community Services Union, told us that 52 workers (all operational staff) at Ashley Youth Detention Centre were members of the union, making it the primary union representing employees at the Centre.

Mr Digney told us the union’s role was to advocate on behalf of its members in industrial matters. He told us the union tried to ‘ensure that procedural fairness and natural justice are upheld in the disciplinary process and that any outcome is proportionate to the alleged or proven misconduct’.268 According to Mr Digney, this approach did not change if the disciplinary processes in question involved allegations of child sexual abuse.269

In his evidence at our hearings, Mr Digney told us that when disciplinary processes were initiated against union members, at times, the union would dispute whether the Head of Agency had ‘the relevant information in front of them that would enable them to form a requisite belief’.270 Mr Digney then said:

That’s not to say that allegations haven’t been made, but that’s to say that perhaps an allegation that there’s been a breach of the Code of Conduct has been made prematurely before other enquiries are made.271

Mandy Clarke, former Deputy Secretary of the Children, Youth and Families division of the Department of Communities, told us that while the safety of young people in detention was a paramount concern for the Department, this concern had to be balanced with the need for a preliminary assessment that supported ‘a plausible allegation when/if subjected to industrial scrutiny’.272 More pointedly, Ms Allen, former Acting Executive Director, People and Culture, Department of Communities, told us that in relation to initial allegations against employees, the Department was:

[o]perating against a background of unions who would lodge applications to review actions in the Tasmanian Industrial Commission, including about whether the Secretary could form reason to believe that a breach of the State Service Act 2000 Code of Conduct.273

This may partly explain why preliminary assessments have become long,
drawn-out processes.

In terms of the safety of children in government institutions, the approach of the Health and Community Services Union to preliminary assessments of the conduct of workers that potentially threatens the safety of children in government institutions could be better directed. We consider that the relevant information needed to form a reasonable belief that there may have been a breach of the State Service Code of Conduct should be confined to a basic assessment of the alleged facts. As discussed, there is a danger that a preliminary assessment can become a de facto investigation. Further, undue delays in the investigative process should be avoided. As discussed, given procedural fairness and a right of reply is permissible at the investigation stage, we do not view it as necessary for such rights to be accorded at the preliminary assessment stage.

The Health and Community Services Union has shown concern about issues involving child safety; for example, we note its support for therapeutic approaches to residential care for young people in the youth justice system and its willingness to work with the government on reforms to disciplinary processes, so these processes are more trauma-informed.274 The Health and Community Services Union states that its approach to advocacy is to simply enforce basic and fundamental rights regarding the proper conduct of disciplinary processes.275

Community and Public Sector Union

Thirza White, the General Secretary of the Community and Public Sector Union, told us the union provides general advice to its members who are subject to State Service disciplinary procedures about what will occur during process.276 As with other unions, Ms White told us the Community and Public Sector Union was concerned to ensure the employer complied with the requirements of disciplinary processes, including that any sanctions imposed be ‘reasonable and proportionate to any breaches found’.277 As with other unions, Ms White said that where a member requested assistance with State Service disciplinary processes, the Community and Public Sector Union’s approach to the ‘industrial services provided’ did not change based on the nature of the allegations, including allegations of child sexual abuse, against the member.278 Ms White noted that ‘[i]nformation, advice, and representation is provided in respect of the Employer’s compliance with the procedure that the Head of Agency has commenced’.279

Ms White’s statement reveals a level of concern for matters that involve the safety of children. For example, she acknowledges that ‘[i]n workplaces where services are provided to vulnerable people, additional measures should be taken by the Employer

to ensure safe staffing levels and to foster a workplace culture of complaint raising and reporting of incidents’.280

The Community and Public Sector Union informed us of the actions it has undertaken regarding how the union handles matters involving child sexual abuse. These include:

a review of internal processes leading to introducing an employment policy on ‘Disclosure of Child Safety Matters’ (the Community and Public Sector Union did not include the policy in their response, but offered to supply it on request)
new protocols in relation to the election of delegates that are similar to those outlined above in relation to the Australian Nursing and Midwifery Federation
raising concerns formally and through the Independent State Service Review ‘around the functionality of [Employment Direction No. 5] and the grievance procedure to adequately deal with inappropriate, and at times, illegal behaviour, as well as support a culture that encourages bystander action through reporting of inappropriate conduct’
establishing, in 2021, ‘a dedicated reporting webpage for employees who had witnessed or experienced sexual and gendered violence in the workplace to allow employees to submit a report and receive a call from the [Community and Public Sector Union] Member Advice & Support Team about their options and next steps’.281

Union support for child safety reform

We understand the difficulties that can arise for unions (and other industrial advocates) when a member is subject to disciplinary proceedings involving child sexual abuse and related matters. On the one hand, unions are concerned with ensuring disciplinary processes are followed and procedural fairness is accorded to the member. On the other hand, unions recognise the importance of the safety of children in the workplaces where their members are employed.

These difficulties aside, there are actions that unions can take to help improve the safety of children and young people. For example, unions can:

provide resources to members on recognising and reporting child sexual abuse and related matters
provide clear public statements about the union’s position on child sexual abuse and how the union approaches matters involving child sexual abuse
develop policies that direct how these matters are to be addressed in the union.

Together, initiatives such as these can help to improve the safety of children and young people in the workplaces where their members are employed by fostering a culture in the union and its membership that prioritises child safety.

To this end, we are heartened by the proactive stance that some unions have taken regarding matters concerning the safety of children and young people, for example, the developments in the Australian Nursing and Midwifery Federation. We also note that, generally, all unions we engaged with appear to recognise the importance of these issues and support changes to disciplinary processes that will help to keep children and young people safe in government institutions.

To help improve the safety of children and young people in government institutions where their members work, we invite unions to:

develop a position statement on allegations of child sexual abuse and professional boundary breaches consistent with grooming. The statement should be publicly available and easily accessible
develop and make available to their membership policies that address how the union handles matters involving child sexual abuse and professional boundary breaches consistent with grooming
make training available to their members that covers topics including recognising, reporting and responding to child sexual abuse and related conduct.
The training should include information about child trauma-related behaviours for union delegates or workplace representatives who represent members facing allegations of child sexual abuse.282

We also invite unions to support the changes we are recommending to State Service disciplinary processes in the interests of ensuring the safety of children and young people in government institutions. This could be done by issuing a statement of support.

Role of the Tasmanian Industrial Commission

Workplace actions taken by the State against an employee are subject to review by the Tasmanian Industrial Commission.283 The Industrial Commission may not have direct responsibility for the safety of children in government institutions. However, its review of actions taken regarding government employees can influence how these matters are approached in government agencies.

In our hearings on health, the prospect of appeals to the Tasmanian Industrial Commission figured prominently with those in the Department of Health who were responsible for such matters. For example, Mathew Harvey, former Human Resources Consultant with the Department of Health, told us that regarding unsubstantiated allegations, the Tasmanian Industrial Commission had said such allegations could not be used in any ‘claim in any forum going forward’.284

When asked whether the focus should be on the protection and safety of children and young people as opposed to industrial relations issues in these matters,
Mr Harvey’s view was:

I mean, it’s the same thing: if we were to find him [James Griffin] guilty and then he took it to, for instance, appealed it through the Industrial Commission, which is the way appeals can [progress], through our system, then [they] would have said, you’ve relied on unsubstantiated claims to make a finding and you can’t do that, and it’s a decision that would have most likely been overturned.285

As discussed, the ability to use past matters to establish patterns of behaviour that may indicate child sexual abuse is vitally important. We also noted above Ms Allen’s suggestion that appeals to the Industrial Commission can shape the way a preliminary assessment or disciplinary process is conducted.

Similar to issues involving allegations of past misconduct, we heard that the question of whether inappropriate conduct could be considered to have occurred in the course of an employee’s employment (for the purpose of the State Service Code of Conduct) presented challenges for the Department of Health. The Department of Health told us that it did not consider appeals a deterrent for taking action.286 However, the Department said that where there were allegations or incidents were not subject to criminal charges and the relevant conduct was alleged to have occurred outside the course of employment, this could mean that ‘actions have greater exposure to appeals’ to the Tasmanian Industrial Commission.287

Affording procedural fairness to employees, including through appeal processes is, of course, essential. However, we are concerned the Tasmanian Industrial Commission’s approach to matters that involve child sexual abuse and related behaviours is through a strict and technical industrial relations focus, rather than one that fully considers the issues raised by such matters. This strict focus may be due to the highly prescriptive nature of State Service disciplinary processes, which can lead Tasmanian Industrial Commission reviews to focus on technical details and procedural aspects. As stated previously, the 2021 report Critical Analysis Report on Termination in the State Service for the Department of Premier and Cabinet said:

This focus, internally, on form over substance then unduly narrows the focus
of the [Tasmanian Industrial Commission]. The [Tasmanian Industrial Commission] is reviewing strict procedures which already burden the [Tasmanian State Service] system and is not empowered, through legislation, to take a more practical or discretionary view of matters.288

Because the Tasmanian Industrial Commission is required to determine employment matters regarding child sexual abuse and related conduct, we consider it should regard the need to protect children and the impacts of child sexual abuse. We consider that training in the issues raised by child sexual abuse and related conduct will help to foster a more responsive approach to these issues when they arise in reviews of government actions by the Tasmanian Industrial Commission. This training will also help when the Government adopts our recommendation for increased rights for a complainant in cases of allegations of child sexual abuse (refer to Recommendation 20.8). We recommend in Chapter 16 that the Tasmanian Government funds the provision and/or development of training for judges on the dynamics of child sexual abuse and trauma-informed practice or funds judges to attend interstate programs such as those offered by the Judicial College of Victoria (refer to Recommendation 16.25).

Such training should be designed to raise awareness about the nature and impact of trauma and child sexual abuse, its prevalence and how to apply trauma-informed principles in judicial decision making. We recommend that Tasmanian Industrial Commission members also receive such training, either locally or by attending any relevant interstate program or training, such as the programs offered by the Judicial College of Victoria.

Recommendation 20.15

The Government should fund the Tasmanian Industrial Commission to enable its members to attend training on child sexual abuse either locally or through any relevant interstate program or training, such as the programs offered by the Judicial College of Victoria.

Conclusion

In this chapter, we have outlined many problems with the State’s disciplinary framework
in relation to responding to allegations of child sexual abuse and related conduct, including the State Service Code of Conduct and employment directions. We have proposed many reforms relating to the application and implementation of the Code itself and to the employment directions related to suspensions, breach of code of conduct investigations and inability to perform duties. Fundamentally, we are calling for a shift in the focus of this disciplinary framework to allow for a prioritisation of the safety of children. It will take significant commitment and culture change to achieve this outcome. But it should be done.

Notes

1 The State Service Code of Conduct is in section 9 of the State Service Act 2000. Relevant employment directions are: Tasmanian Government, Employment Direction No. 4 – Procedure for the Suspension of State Service Employees With or Without Pay (4 February 2013); Tasmanian Government, Employment Direction No. 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct (4 February 2013); and Tasmanian Government, Employment Direction No. 6 – Procedures for the Investigation and Determination of Whether an Employee Is Able to Efficiently and Effectively Perform Their Duties (4 February 2013). Also relevant are the State Service Principles, which are in section 7 of the State Service Act 2000. The Principles are a statement about the way employment in the State Service is to be managed, and the standards expected of State Service employees.

2 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 33.

3 Refer to Statement of Timothy Bullard, 10 May 2022, 50 [298]; Statement of Michael Pervan (Provisional), 26 October 2022, 61 [331]; Statement of Kathrine Morgan-Wicks, 24 May 2022, 39 [332]. In relation to Ashley Youth Detention Centre employees, refer to Department of Communities, ‘Preliminary Assessments’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

4 Tasmanian Government, Employment Direction No. 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 7.1.

5 State Service Act 2000 ss 10(1)(a)–(b), (e), (g).

6 Department of Communities, ‘ED tracker’ (Excel spreadsheet), January 2023, produced by the Tasmanian Government in response to a Commission notice to produce; Department of Education, ‘ED tracker’ (Excel spreadsheet), 22 February 2023, produced by the Tasmanian Government in response to a Commission notice to produce; Department of Health, ‘ED tracker’ (Excel spreadsheet), February 2023, produced by the Tasmanian Government in response to a Commission notice to produce. Refer to Appendix H for the methodology used to calculate these numbers. We note there were also four suspensions in the Department of Police, Fire and Emergency Management, refer to Department of Police, Fire and Emergency Management, Spreadsheet: ‘ED tracker’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

7 Department of Communities, ‘ED tracker’ (Excel spreadsheet), January 2023, produced by the Tasmanian Government in response to a Commission notice to produce; Department of Education, ‘ED tracker’ (Excel spreadsheet), 22 February 2023, produced by the Tasmanian Government in response to a Commission notice to produce; Department of Health, ‘ED tracker’ (Excel spreadsheet), February 2023, produced by the Tasmanian Government in response to a Commission notice to produce.

8 Department of Communities, ‘ED tracker’ (Excel spreadsheet), January 2023, produced by the Tasmanian Government in response to a Commission notice to produce

9 Department of Communities, ‘ED tracker’ (Excel spreadsheet), January 2023, produced by the Tasmanian Government in response to a Commission notice to produce

10 Department of Communities, ‘ED tracker’ (Excel spreadsheet), January 2023, produced by the Tasmanian Government in response to a Commission notice to produce.

11 Statement of Michael Pervan, 4 August 2022, 2 [7]; Transcript of Clare Lovell, 14 June 2022, 1184 [46]–1185 [5]; Transcript of Michael Pervan, 17 June 2022, 1587 [14–41], 1594 [36–45], 1633 [47]–1634 [6]; Statement of Michael Pervan, 27 July 2022, 73 [249].

12 Department of Education, ‘ED tracker’ (Excel spreadsheet), 22 February 2023, produced by the Tasmanian Government in response to a Commission notice to produce.

13 Department of Health, ‘ED tracker’ (Excel spreadsheet), February 2023, produced by the Tasmanian Government in response to a Commission notice to produce.

14 Department of Health, ‘ED tracker’ (Excel spreadsheet), February 2023, produced by the Tasmanian Government in response to a Commission notice to produce.

15 Refer to Chapter 6.

16 Refer to Chapter 6.

17 Refer to Chapter 6.

18 Refer to Chapter 6.

19 Refer to Chapter 6.

20 Refer to Chapter 6.

21 Refer to Chapter 6.

22 Refer to Chapter 7.

23 Refer to Chapter 11, Case study 7.

24 Refer to Chapter 11, Case studies 5 and 7.

25 Refer to Chapter 11, Case study 7.

26 Refer to Chapter 11, Case study 7.

27 Refer to Chapter 11, Case study 7.

28 Refer to Chapter 11, Case studies 5, 6 and 7.

29 Refer to Chapter 11, Case study 7.

30 Statement of Jacqueline Allen, 15 August 2022, 38 [203(c)].

31 Refer to Chapter 11, Case studies 6 and 7.

32 Refer to Chapter 11, Case study 7.

33 Refer to Chapter 11, Case study 7.

34 Refer to Chapter 11, Case study 7.

35 Refer to Chapter 14, Case study 1.

36 Refer to Chapter 14, Case study 3.

37 Refer to Chapter 14, Case study 2.

38 Refer to Chapter 14, Case study 3.

39 Refer to Chapter 14, Case study 3.

40 Refer to Chapter 14, Case study 3.

41 Refer to Chapter 14, Case study 3.

42 Ian Watt, Independent Review of the Tasmanian State Service (Interim Report, 2020) 54.

43 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, 2021) 202.

44 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, 2021) 202.

45 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, 2021) 201. The Review found that, in Tasmania, most terminations were for inability (65 per cent in 2019) whereas terminations for underperformance or State Service Code of Conduct breaches were only 24 per cent of the total in 2019. In the Australian Government, terminations for underperformance or misconduct were 40 per cent of all terminations.

46 Edge Legal, Critical Analysis Report on Termination in the State Service (Report, 2021) 8–9.

47 Edge Legal, Critical Analysis Report on Termination in the State Service (Report, 2021) 9.

48 Ian Watt, Independent Review of the Tasmanian State Service (Interim Report, 2020) 54.

49 Ian Watt, Independent Review of the Tasmanian State Service (Interim Report, 2020) 54.

50 Submission 084 Integrity Commission of Tasmania, 4.

51 Submission 084 Integrity Commission of Tasmania, 4.

52 Transcript of Eric Daniels, 30 June 2022, 2106 [23–28].

53 Transcript of Eric Daniels, 30 June 2022, 2106 [41–44].

54 Transcript of Eric Daniels, 30 June 2022, 2107 [16–17].

55 Statement of Richard Eccleston, 2 May 2022, 9 [34].

56 Statement of Richard Eccleston, 2 May 2022, 12 [49].

57 State Service Act 2000 s 9.

58 State Service Act 2000 s 10.

59 State Service Act 2000 ss 44, 45. Other potentially relevant provisions of the State Service Act 2000 are: the inability to perform duties (s 48); review of actions (ss 50–51); and performance management, including underperformance (Part 7A).

60 Refer to, for example, Public Sector Management Act 1994 (ACT) s 9; Public Sector Employment and Management Act 1993 (NT) s 49; Government Sector Employment Act 2013 (NSW) s 69 and Government Sector Employment (General) Rules 2014 (NSW) pt 8 (refer also to Public Service Commissioner Direction No 2 of 2022 (NSW) which incorporates the Code of Ethics and Conduct for NSW Government Sector Employees); Public Service Act 2008 (Qld) s 187, Public Sector Ethics Act 1994 (Qld) pt 4 and Code of Conduct for the Queensland Public Service; Public Sector Act 2009 (SA) s 6 and Code of Ethics for the South Australian Public Sector; Public Administration Act 2004 (Vic) s 61 and Code of Conduct for Victorian Public Sector Employees; Public Sector Management Act 1994 (WA) s 9; Public Service Act (Cth) s 13.

61 State Service Act 2000 s 9(1).

62 State Service Act 2000 s 9(2).

63 State Service Act 2000 s 9(3).

64 State Service Act 2000 s 9(4).

65 State Service Act 2000 s 9(13).

66 State Service Act 2000 s 7(1)(a).

67 State Service Act 2000 s 9(14).

68 State Service Act 2000 s 9(6).

69 State Service Act 2000 s 10.

70 Statement of Timothy Bullard, 4 April 2022, 10 [49].

71 Statement of Kathrine Morgan-Wicks, 24 May 2022, 42 [353]. Refer also to Isabel Bird, ‘Stronger Code for Abuses’, The Examiner (Launceston, 1 December 2022) 3.

72 Statement of Michael Pervan, 23 August 2022, 6 [15], 12 [42].

73 Statement of Stephen Smallbone, 28 April 2022, 8 [32]; Statement of Tim McCormack, 22 April 2022, 3 [15].

74 Refer to Transcript of Jenny Gale, 13 September 2022, 4019 [8–43]; Transcript of Ginna Webster, 12 September 2022, 3959 [10–13].

75 State Service Act 2000 s 9(4).

76 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 6.5.

77 Statement of James Bellinger, 10 June 2022, 27.

78 Statement of Kathrine Morgan-Wicks, 24 May 2022, 42 [351].

79 This was repeated in several of Secretary Bullard’s statements. Refer to, for example, Statement of Timothy Bullard, ‘Wayne’ 4 April 2022, [48–49]; Statement of Timothy Bullard, ‘Jeremy’ 4 April 2022, 10–11 [48–49].

80 Tasmania, Parliamentary Debates, House of Assembly, 21 November 2000, 84 (Denise Swan). The Australian Public Service Code of Conduct is found in section 13 of the Public Service Act 1999 (Cth).

81 Australian Public Service Commission, Handling Misconduct – A Human Resource Manager’s Guide (2021) 135 [2.29] <https://www.apsc.gov.au/circulars-guidance-and-advice/handling-misconduct-human-resource-managers-guide>.

82 Letter from Michael O’Farrell to Timothy Bullard, 11 June 2021, 5 [25], produced by the Tasmanian Government in response to a Commission notice to produce. The view of Mr Michael O’Farrell, the previous Solicitor-General, was based on the decision of the High Court in Comcare v Banerji (2019) 267 CLR 373, which dealt with a similar integrity provision in the Commonwealth Public Service Act 1999 (Cth). The issue in Banerji was whether the relevant provision in the Public Service Act fettered the implied freedom of political communication, in a case where a public servant had posted tweets criticising the government. The High Court did not clearly indicate that the obligations of Australian public servants could not extend beyond the workplace, so that the case does not necessarily confine the acts to which s 9(14) could apply.

83 Queensland Government, Code of Conduct for the Queensland Public Service (1 January 2021) cl 1.5(d).

84 Public Service Act 1999 (Cth) s 13(11)(b).

85 Australian Public Service Commission, Handling Misconduct – A Human Resource Manager’s Guide (2021) 21 [2.28].

86 Australian Public Service Commission, Handling Misconduct – A Human Resource Manager’s Guide (2021) Appendix 2, 135 [2.56].

87 Australian Public Service Commission, Handling Misconduct – A Human Resource Manager’s Guide (2021) Appendix 2, 135 [2.56].

88 Refer to State Service Act 2000 ss 9(1)–(4), (13).

89 Statement of Timothy Bullard, ‘Wayne’, 4 April 2022, 11 [50].

90 Statement of Ginna Webster, 10 June 2022, 38 [234].

91 Email from Senior Workplace Relations Consultant to Industrial Relations Consultant, 9 February 2022,
1, produced by the Tasmanian Government in response to a Commission notice to produce.

92 Email from Senior Workplace Relations Consultant to Industrial Relations Consultant, 9 February 2022, 1–2, produced by the Tasmanian Government in response to a Commission notice to produce.

93 Letter from Solicitor General of Tasmania to Senior Advisor, Legal Services Unit, 22 December 2005, produced by the Tasmanian Government in response to a Commission notice to produce. We note that in terms of the vicarious liability of schools for the conduct of teachers, Gleeson CJ has said: ‘where the teacher–student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment. The degree of power and intimacy in a teacher–student relationship must be assessed by reference to factors such as the age of students, their particular vulnerability if any, the tasks allocated to teachers, and the number of adults concurrently responsible for the care of students. Furthermore, the nature and circumstances of the sexual misconduct will usually be a material consideration’: New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 195 ALR 412, 434 (Gleeson CJ). On this topic, refer also to Prince Alfred College Inc v ADC (2016) 335 ALR 1, 17 (French CJ, Kiefel, Bell, Keane and Nettle JJ).

94 As explained in Chapter 17 Redress, Civil Litigation and Support, the State may now be held liable for child sexual abuse committed by employees in circumstances where vicarious liability might not apply.

95 Refer to Transcript of Timothy Bullard, 12 May 2022, 929 [8–15]. Refer also to Statement of Timothy Bullard, ‘Wayne’, 4 April 2022, 29 [120–121]; Briefing Note from Lyn Metcalfe to John Smyth, 1 August 2007, 3–4, produced by the Tasmanian Government in response to a Commission notice to produce.

96 Statement of Timothy Bullard, ‘Wayne’, 4 April 2022, 20 [91].

97 Statement of Timothy Bullard, ‘Wayne’, 4 April 2022, 20 [91].

98 Transcript of Sarah Kay, 8 July 2022, 2657 [16–23].

99 Statement of Timothy Bullard, ‘Wayne’, 4 April 2022, 22 [95–96].

100 Transcript of Timothy Bullard, 12 May 2022, 930 [34–37].

101 Statement of Timothy Bullard, ‘Wayne’, 4 April 2022, 22 [98].

102 Transcript of Sarah Kay, 8 July 2022, 2658 [13–26].

103 Transcript of Kathrine Morgan-Wicks, 9 September 2022, 3858 [6–9].

104 Statement of Kathrine Morgan-Wicks, 20 May 2022, 41 [338].

105 Transcript of Kathrine Morgan-Wicks, 9 September 2022, 3858 [17–18].

106 Public Sector Employment and Management Act 1993 (NT) s 49(f).

107 Public Sector Management Act 1994 (ACT) s 9(1)(c).

108 ACT Public Sector Standards Commissioner, Guidelines to the Misconduct Process (October 2019) 23.

109 Refer to, for example, Public Service Act 1999 (Cth) s 13. Refer also to Australian Public Service Commission, Handling Misconduct – A Human Resource Manager’s Guide (2021) Appendix 2, 20 [2.24]; NSW Public Service Commission, Public Service Commissioner Direction No 2 of 2022, 4, which incorporates the Code of Ethics and Conduct for NSW Government Sector Employees; Public Sector Act 2009 (SA) s 15(1)(b); Victorian Public Sector Commission, Code of Conduct for Victorian Public Sector Employees (1 June 2015) 3.9.

110 Transcript of Matthew Hardy, 4 July 2022, 2216 [23–29]. Refer also to Health Practitioner Regulation National Law Act 2009 (Qld) s 156.

111 Teachers Registration Act 2000 ss 17J–17L, s 24B.

112 Refer to, for example, Police Act 1892 (WA), s33L; Police Service Act 2003, s30.

113 Refer to, for example, Police Act 1892 (WA), s33L; Police Service Act 2003, s30.

114 Statement of Stephen Smallbone, 28 April 2022, 9 [34–35]; Transcript of Tim McCormack, 9 May 2022, 663 [45]–664 [23].

115 Transcript of Tim McCormack and Stephen Smallbone, 9 May 2022, 664 [1–3]. Refer also to Stephen Smallbone and Tim McCormack, Independent Inquiry into the Tasmanian Department of Education’s Responses to Child Sexual Abuse (Report, 2021) 10.

116 Stephen Smallbone and Tim McCormack, Independent Inquiry into the Tasmanian Department of Education’s Responses to Child Sexual Abuse (Report, 7 June 2021) 79, Recommendation 12.

117 Transcript of Timothy Bullard, 12 September 2022, 3938 [23–30].

118 Western Australia has a system that requires public agencies to implement agency-specific codes of conduct.

119 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 36.

120 Refer to, for example, Transcript of Timothy Bullard, 12 May 2022, 931 [3–32], in which he describes linking departmental policies to particular provisions of the State Service Code of Conduct to establish a breach of the code.

121 Transcript of Jenny Gale, 13 September 2022, 4019 [11–14].

122 Refer to Letter from Michael Pervan to ‘Stan’, 12 February 2021, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

123 Transcript of Jenny Gale, 13 September 2022, 4019 [38–43].

124 While we were not provided the Solicitor-General’s advice in relation to this issue, we understand that the advice was given in relation to a different request and was of the nature that standing orders could only be made for ‘purposes of the administration and operation of the relevant Agency’: Frank Ogle, Email, 5 February 2014, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

125 Refer to Department of Education, ‘DoE Executive Group Meeting, Professional Standards for Staff’, 17 March 2014, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

126 Refer to Letter from Michael Pervan to ‘Stan’, 12 February 2021, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

127 Refer to Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 186.

128 Teachers Registration Board, Professional Boundaries: Guidelines for Tasmanian Teachers (2021) 8. We note that similar cautionary advice or restrictions exist in most states and territories. For example, refer to Victorian Institute of Teaching, The Victorian Teaching Profession’s Code of Conduct (2021) 6 Principle 1.5; Queensland College of Teachers, Professional Boundaries (August 2019) 6; Department of Education and Child Development, Protective Practices for Staff in Their Interactions with Children and Young People: Guidelines for Staff Working and Volunteering in Education and Care Settings (2nd rev ed, Government of South Australia, 2019) 10; Northern Territory Teachers Registration Board, Managing Professional Boundaries: Guidelines for Teachers (2015) 4, 9.

129 Teachers Registration Board, Professional Boundaries: Guidelines for Tasmanian Teachers (2021) 9.

130 Statement of Kathrine Morgan-Wicks, 24 May 2022, 42 [353]. Refer also to Statement of Jacqueline Allen, 15 August 2022, 54 [326(c)] (in the context of ‘in the course of employment’); Isabel Bird, ‘Stronger Code for Abuses’, The Examiner (Launceston, 1 December 2022) 3.

131 Child and Youth Safe Organisations Act 2023 s 7(1).

132 Child and Youth Safe Organisations Act 2023 s 35.

133 State Service Act 2000 s 3(1) (definition of ‘employee’).

134 Refer to discussion in Chapter 5.

135 Statement of Timothy Bullard, 10 May 2022, 34 [194(b)], 36 [217].

136 Solicitor-General of Tasmania, Procedural Fairness Response, 27 June 2023, 30.

137 Child and Youth Safe Organisations Act 2023 s 35(1)(a).

138 Child and Youth Safe Organisations Act 2023 s 8(b).

139 State Service Act 2000 s 17. Under section 17 of the State Service Act, the Employer may issue Employment Directions. Section 14 of the State Service Act provides that the Minster administering the State Service Act is the ‘Employer’.

140 We note that Employment Direction No.5—Breach of Code of Conduct was recently updated in April 2023, after we had completed our inquiry phase. Due to the timing of the update, we discuss the previous iteration of Employment Direction No.5—Breach of Code of Conduct in this chapter.

141 Refer to Statement of Timothy Bullard, 10 May 2022, 50 [298]; Statement of Michael Pervan (Provisional), 26 October 2022, 61 [331]; Statement of Kathrine Morgan-Wicks, 24 May 2022, 39 [332]. In relation to Ashley Youth Detention Centre employees, refer to Department of Communities, ‘Preliminary Assessments’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

142 State Service Act 2000 ss 15, 16, 20, although the Head of the State Service cannot issue Employment Directions: s 20(2).

143 Under sections 3 and 14 of the State Service Act 2000, the ‘Employer’ is the Minister administering the State Service Act 2000. By virtue of the Administrative Arrangements for Tasmanian Enactments, the relevant Minister is the Premier. Part of the role of the State Service Management Office is to support ‘the Minister administering the State Service Act 2000 and the Head of the State Service to undertake the employer functions and powers’. Refer to Department of Premier and Cabinet, State Service Management Office
(Web Page) <https://www.dpac.tas.gov.au/divisions/ssmo>.

144 Refer to, for example, Integrity Commission Tasmania, An Own-Motion Investigation into the Management of Misconduct in the Tasmanian Public Sector (Report No. 3, December 2017).

145 Refer to, for example, William Cox, Independent Review of the Integrity Commission Act 2009 – Report of the Independent Reviewer (Report, May 2016); Integrity Commission Tasmania, An Own-Motion Investigation into the Management of Misconduct in the Tasmanian Public Sector (Report No. 3, December 2017).

146 Department of Premier and Cabinet, ‘Draft Employment Direction No 4’, ‘Draft Employment Direction No 5’ and ‘Draft Employment Direction No 6’, produced by the Tasmanian Government in response to a Commission notice to produce. Refer also to State Service Management Office, ‘Examination of Employment Framework – Update Report – April 2018’, 2018, produced by the Tasmanian Government in response to a Commission notice to produce.

147 Refer generally to Department of Premier and Cabinet, Government Response to the Independent Review of the Tasmanian State Service (Report, 2021).

148 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, 2021) 202.

149 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, 2021) 202.

150 Department of Premier and Cabinet, Government Response to the Independent Review of the Tasmanian State Service (Report, 2021).

151 Refer generally to Department of Premier and Cabinet, Government Response to the Independent Review of the Tasmanian State Service (Report, 2021), Recommendations 37, 55, 56.

152 Department of Communities, ‘ED tracker’ (Excel spreadsheet), January 2023, produced by the Tasmanian Government in response to a Commission notice to produce; Department of Education, ‘ED tracker’ (Excel spreadsheet), 22 February 2023, produced by the Tasmanian Government in response to a Commission notice to produce; Department of Health, ‘ED tracker’ (Excel spreadsheet), February 2023, produced by the Tasmanian Government in response to a Commission notice to produce. Refer to Appendix H for the methodology used to calculate these numbers.

153 We note that in evidence provided to us, the term ‘preliminary assessment’ is used interchangeably with ‘preliminary investigation’. We have chosen to use ‘preliminary assessment’ as this aligns with the Integrity Commission’s guidance on preliminary assessments and emphasises that these are not investigations.

154 Tasmanian Government, Employment Direction No. 5: Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 7.3.

155 Integrity Commission Tasmania, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021).

156 Integrity Commission Tasmania, An Own-Motion Investigation into the Management of Misconduct in the Tasmanian Public Sector (Report No. 3, December 2017) 68–74. The original guide to managing misconduct in the own-motion report was updated in 2021. See Integrity Commission, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021).

157 Integrity Commission Tasmania, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021) 9–10.

158 Integrity Commission Tasmania, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021) 10.

159 Integrity Commission Tasmania, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021) 10.

160 Michael Easton, Integrity Commission Procedural Fairness Response, 8 March 2023, 2.

161 Department of Health, ‘Code of Conduct Investigations – Internal Audit’, August 2019, 6, produced by the Tasmanian Government in response to a Commission notice to produce.

162 Department of Health, ‘Guidance Notes – Employment Direction No. 5 Preliminary Assessment’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

163 Department of Health, ‘Guidance Notes – Employment Direction No. 5 Preliminary Assessment’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

164 Department of Health, ‘Guidance Notes – Employment Direction No. 5 Preliminary Assessment’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

165 Department of Health, ‘Guidance Notes – Employment Direction No. 5 Preliminary Assessment’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

166 Solicitor-General of Tasmania, Procedural Fairness Response, 27 June 2023, 33–34.

167 Integrity Commission Tasmania, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021) 11.

168 Department for Education, Children and Young People, Advice for School Staff—Responding to Incidents, Disclosures or Suspicions of Child Sexual Abuse (2022) 2.

169 Statement of Michael Pervan, 14 June 2022, 43 [229]; refer also to Statement of Jacqueline Allen, 15 August 2022, 32 [181].

170 Refer to, for example, case examples of Lester, Ira and Stan in Chapter 11. The names ‘Lester’, ‘Ira’ and ‘Stan are pseudonyms; Order of the Commission of Inquiry, restricted publication order, 18 August 2022.

171 Refer to Statement of Timothy Bullard, 10 May 2022, 10 [60(c)].

172 Tasmanian Government, Employment Direction No. 4 – Procedure for Suspension of State Service Employees With or Without Pay, 4 February 2013, cl 6.1.

173 Tasmanian Government, Employment Direction No. 4 – Procedure for Suspension of State Service Employees With or Without Pay, 4 February 2013, cl 6.2.

174 Tasmanian Government, Employment Direction No. 4 – Procedure for Suspension of State Service Employees With or Without Pay, 4 February 2013, cl 6.4.

175 Tasmanian Government, Employment Direction No. 4 – Procedure for Suspension of State Service Employees With or Without Pay, 4 February 2013, cl 6.4.

176 Department of Communities, ‘Official Stand Downs’ (Excel spreadsheet), August 2021, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

177 Statement of Jenny Gale, 10 June 2022, 35 [37].

178 Statement of Timothy Bullard, 4 April 2022, 9 [40].

179 Statement of Jacqueline Allen, 15 August 2022, 54 [326]; Statement of Michael Pervan, 14 June 2022, 65 [357].

180 Statement of Jacqueline Allen, 15 August 2022, 54 [326]; Statement of Michael Pervan, 26 October 2022, 65 [357].

181 Statement of Michael Pervan, 14 June 2022, 68 [373].

182 Statement of Michael Pervan, 14 June 2022, 68 [373].

183 Statement of Michael Pervan, 14 June 2022, 68 [373].

184 Solicitor-General of Tasmania, Procedural Fairness Response, 27 June 2023, 38.

185 Statement of Kathrine Morgan-Wicks, 24 May 2022, 41 [344].

186 Statement of Kathrine Morgan-Wicks, 24 May 2022, 43 [365–366].

187 Tasmanian Government, Employment Direction No. 4 – Procedure for Suspension of State Service Employees With or Without Pay, 4 February 2013, cl 6.1.

188 Tasmanian Government, Employment Direction No. 4 – Procedure for Suspension of State Service employees With or Without Pay, 4 February 2013, cl 6.4.

189 Tasmanian Government, Employment Direction No. 4 – Procedure for Suspension of State Service Employees With or Without Pay, 4 February 2013, cls 6.4a–i.

190 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 1.1.

191 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 6.3; Solicitor-General of Tasmania, Procedural Fairness Response, 27 June 2023, 38.

192 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 6.6.

193 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has breached the Code of Conduct, 4 February 2013, cl 7.3.

194 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 7.4.

195 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 7.7.

196 Statement of Jenny Gale, 29 April 2022, 3–4 [29].

197 Statement of Michael Pervan, 24 August 2022, 36 [138].

198 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 11.1 a.

199 State Service Act 2000 s 50(1)(b).

200 Department of Premier and Cabinet, Tasmanian Government’s Interim Response to the Commission
of Inquiry (Report, 30 June 2023) 3 (Action 8).

201 Transcript of Alana Susan Girvin, 11 May 2022, 875 [40–46].

202 Transcript of Will Gordon, 27 June 2022, 1754 [45]–1755 [7].

203 Launceston consultation, 19 August 2021.

204 Solicitor-General of Tasmania, Procedural Fairness Response, 27 June 2023, 41.

205 Statement of James Bellinger, 10 June 2022, 27.

206 Tasmanian Government, Employment Direction 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 7.4 footnote 3.

207 Integrity Commission Tasmania, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021) 13. Difficulties with maintaining confidentiality in a small jurisdiction such as Tasmania (where ‘everyone knows everyone else’), were noted in submissions we received and by participants in both our targeted and stakeholder consultations. Refer to, for example, Submission 056 Engender Equality, 8; Hobart consultation,
13 August 2021; Launceston consultation, 19 August 2021; Targeted consultation, anonymous, 2021.

208 Integrity Commission Tasmania, Guide to Managing Misconduct in the Tasmanian Public Sector (March 2021) 48.

209 Department of Education, ‘Employment Direction No.5 Fact Sheet – Principal/Manager Guide’, undated, 5, produced by the Tasmanian Government in response to a Commission notice to produce.

210 Transcript of Ginna Webster, 12 September 2022, 3958 [29–33].

211 Transcript of ‘Rachel’, 11 May 2022, 813 [15–19]. The name ‘Rachel’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 11 May 2022.

212 Transcript of Timothy Bullard, 11 May 2022, 902 [22–26].

213 Statement of Timothy Bullard, 6 June 2022, 3 [16].

214 Transcript of Ginna Webster, 12 September 2022, 3958 [35–39].

215 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, 2021) 203, Recommendation 56.

216 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 30.

217 Integrity Commission Tasmania, An Own-Motion Investigation into the Management of Misconduct in the Tasmanian Public Sector (Report No 3, 2017).

218 Integrity Commission Tasmania, An Own-Motion Investigation into the Management of Misconduct in the Tasmanian Public Sector (Report No 3, 2017) 51, Recommendation 3. The Integrity Commission recommended that the records be kept for two years.

219 Integrity Commission Tasmania, An Own-Motion Investigation into the Management of Misconduct
in the Tasmanian Public Sector (Report No 3, 2017) 49 [267].

220 State Service Management Office, ‘Notes for Head of Agency Group Meeting’, 24 January 2018,
10, produced by the Tasmanian Government in response to a Commission notice to produce.

221 State Service Management Office, ‘Notes for Head of Agency Group Meeting’, 24 January 2018,
10, produced by the Tasmanian Government in response to a Commission notice to produce.

222 Department of Premier and Cabinet, Tasmanian Government’s Interim Response to the Commission
of Inquiry (Report, 30 June 2023) 6 (Action 22).

223 State Service Management Office, ‘Notes for Head of Agency Group Meeting’, 24 January 2018 1,
10, produced by the Tasmanian Government in response to a Commission notice to produce.

224 Solicitor-General of Tasmania, Procedural Fairness Response, 27 June 2023, 44–45.

225 Transcript of Michael Pervan, 26 August 2022, 3510 [12–38].

226 Transcript of Michael Pervan, 26 August 2022, 3512 [38–42].

227 Statement of Mathew Harvey, 17 June 2022, 9 [35].

228 Statement of James Bellinger, 10 June 2022, 21.

229 Statement of Kathrine Morgan-Wicks, 22 June 2022, 16 [96].

230 Statement of Kathrine Morgan-Wicks, 22 June 2022, 16 [97].

231 Solicitor-General of Tasmania, ‘Employment Direction No. 5 – Investigation by Different Agency –
Personal Information Protection Act 2004 – sharing information between Agencies – Youth Justice Act 1997’, 16 March 2022, 6 [32], produced by the Tasmanian Government in response to a Commission notice to produce.

232 Integrity Commission, ‘Comment on Draft Chapter, “Disciplinary responses”’, 8 March 2023, 3.

233 Tasmanian Government, Employment Direction No. 5 – Procedures for the Investigation and Determination of Whether an Employee Has Breached the Code of Conduct, 4 February 2013, cl 7.2.

234 Fair Work Regulations 2009 (Cth) reg 1.07 (2)(a).

235 Fair Work Regulations 2009 (Cth) reg 1.07 (2)(b)(i).

236 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, July 2021) 204.

237 Tasmanian Government, Employment Direction No. 6 – Procedures for the Investigation and Determination of Whether an Employee Is Able to Efficiently and Effectively Perform Their Duties, 4 February 2013, cl 7.

238 State Service Act 2000 ss 48(1)(a)–(f).

239 Statement of Jacqueline Allen, 15 August 2022, 46 [271].

240 For example, in Kerri’s case ‘John’ was eventually subject to an Employment Direction No. 6 investigation as he had lost his Registration to Work with Vulnerable People. Refer to Chapter 5 and Chapter 14, Case study 3. In relation to the former Department of Communities, refer also to Department of Justice, ‘Item 4: Policies and Procedures Tasmanian Government’s Current Service System’, undated, 31, produced by the Tasmanian Government in response to a Commission notice to produce. The name ‘John’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 11 May 2022.

241 Ian Watt, Independent Review of the Tasmanian State Service (Final Report, 2021) 206.

242 Statement of Jacqueline Allen, 15 August 2022, 54 [326].

243 Transcript of Jenny Gale, 6 May 2022, 542 [28–29].

244 Statement of Jenny Gale, 10 June 2022, 34 [27].

245 We note that in some other jurisdictions, comprehensive guidance is provided on conducting investigations and the management of misconduct in the public sector. For example, refer to Queensland’s Public Service Commission, Managing Workplace Investigations – A Practical Guide for the Queensland Public Sector (September 2018); Australian Public Service Commission, Handling Misconduct – A Human Resource Manager’s Guide (2021).

246 Transcript of Jenny Gale, 13 September 2022, 4021 [44–47].

247 Transcript of Jenny Gale, 13 September 2022, 4022 [8–9].

248 Transcript of Jenny Gale, 13 September 2022, 4022 [9–13].

249 Statement of Jenny Gale, 10 June 2022, 41–42 [44].

250 Transcript of Richard Eccleston, 5 May 2022, 356 [12–16].

251 Statement of Steven Smith, 22 April 2022, 2 [9].

252 Statement of Steven Smith, 22 April 2022, 2 [10].

253 Statement of Steven Smith, 22 April 2022, 3 [17].

254 Statement of Steven Smith, 22 April 2022, 3 [18].

255 Statement of Steven Smith, 22 April 2022, 3 [18].

256 Statement of Steven Smith, 22 April 2022, 3–4 [21].

257 Transcript of Steven Smith, 11 May 2022, 850 [38–44].

258 Transcript of Steven Smith, 11 May 2022, 846 [1–4].

259 Transcript of Steven Smith, 11 May 2022, 846 [9–11].

260 Transcript of Steven Smith, 11 May 2022, 846 [9–11].

261 Statement of Emily Shepherd, 23 June 2022, 1 [6].

262 Statement of Emily Shepherd, 23 June 2022, 2 [10]. The Position Statement was last reviewed and re-endorsed in 2019.

263 Australian Nursing and Midwifery Federation, ANMF Position Statement – Child Abuse and Neglect (2007, reviewed and re-endorsed November 2019).

264 Australian Nursing and Midwifery Federation, ANMF Position Statement – Child Abuse and Neglect (2007, reviewed and re-endorsed November 2019).

265 Transcript of Emily Shepherd, 29 June 2022, 1928 [42]–1929 [1].

266 Transcript of Emily Shepherd, 29 June 2022, 1932 [4–14].

267 Transcript of Emily Shepherd, 29 June 2022, 1934 [35–38], 1935 [15–24].

268 Statement of Lucas Digney, 9 August 2022, 3.

269 Statement of Lucas Digney, 9 August 2022, 4.

270 Transcript of Lucas Digney, 24 August 2022, 3268 [26–28].

271 Transcript of Lucas Digney, 24 August 2022, 3268 [2–32].

272 Statement of Mandy Clarke, 19 August 2022, 5–6 [6].

273 Statement of Jacqueline Allen, 19 December 2022, 8 [59].

274 Statement of Lucas Digney, 9 August 2022, 11; Transcript of Lucas Digney, 24 August 2022, 3263 [26–28].

275 Health and Community Services Union, comments in relation to the draft Disciplinary Responses Chapter, 17 March 2023, 2.

276 Statement of Thirza White, 8 August 2022, 5 [20].

277 Statement of Thirza White, 8 August 2022, 5 [21].

278 Statement of Thirza White, 8 August 2022, 5 [23].

279 Statement of Thirza White, 8 August 2022, 5 [24].

280 Statement of Thirza White, 8 August 2022, 5 [40].

281 Community and Public Sector Union, Comments in relation to the draft Disciplinary Responses Chapter, 15 March 2023, 1–2.

282 In the case of education, we acknowledge this training is recommended to be provided by the Department for Education, Children and Young People in accordance with Recommendation 6.5 in the Education Chapter.

283 State Service Act 2000 s 50. Refer also to Industrial Relations Act 1984 s 19AA, which states the Industrial Commission is to review matters under section 50 of the State Service Act 2000.

284 Transcript of Mathew Harvey, 28 June 2022, 1848 [14–18].

285 Transcript of Mathew Harvey, 28 June 2022, 1848 [22–28].

286 Department of Health, ‘NTP-TAS-002 Item 14’, undated, 7, document produced by the Tasmanian Government in response to a Commission Notice to Produce.

287 Department of Health, ‘NTP-TAS-002 Item 14’, undated, 7, document produced by the Tasmanian Government in response to a Commission Notice to Produce.

288 Edge Legal, Critical Analysis Report on Termination in the State Service (Report, 2021) 9.

Acknowledgment of country

We acknowledge and pay respect to the Tasmanian Aboriginal people as the traditional and original owners, and continuing custodians of this land and acknowledge Elders, past and present.

Chapter 20 – State Service disciplinary processes

Integrity Commission guidance

Department of Health

Department for Education, Children and Young People

Notes

On this page

Acknowledgment of country