Determination and relief

The Commissioner determines whether or not a Standard has been breached by considering the facts and circumstances in the report and any other information or document that the Commissioner obtains and considers relevant to the claim. 

If a breach is found the Commissioner recommends relief, if any, and in some instances directs the relief to be provided by the agency to the claimant.

This section

This section provides information about:

  • the Commissioner’s role to determine a breach and to recommend and direct relief
  • an agency’s role once a determination is made
  • the Commissioner’s reporting role.

Possible determinations by the Commissioner 

Considering all the facts and circumstances, the Commissioner may determine that:

  • a claim is dismissed.
    Where no breach is determined, the Commissioner writes to the claimant and the agency informing them the claim is dismissed and giving reasons for the determination. The Commissioner may choose to raise areas for practice improvement with the agency, where no breach is determined. This finalises the claim.
  • a breach has occurred.
    If the Commissioner determines there has been a breach of the Standard, the Commissioner writes to the claimant and the agency advising of the breach and giving reasons for that determination. The Commissioner will also recommend or direct what relief, if any, is to be provided to the claimant.

Relief

The relief, either recommended or directed by the Commissioner, will vary depending on the circumstances. Relief may include:

  • recommencing a process either from the start or from the point where the breach occurred
  • changes to the agency’s policies or practices to minimise breaches of the Standard in the future.

If the Commissioner directs relief, the Commissioner will specify the period by which this relief is to be provided. 

The Commissioner cannot recommend or direct that the claimant be appointed to a position as relief for a breach determination. The Commissioner may, however, direct that a specified person is not to be appointed.

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Agency response to Commissioner’s recommendations

The agency must consider the Commissioner’s recommendation for relief and provide a response to the Commissioner within 10 working days of receiving that recommendation.

The response from the agency must provide one of the following outcomes:

  • the agency intends to give the recommended relief to the claimant
  • the agency intends to give the claimant alternative relief. The response to the Commissioner must specify what that relief will be and give reasons for providing the alternative relief
  • the agency does not intend to give any relief and the reasons why they do not intend to give relief.

Agency informs Commissioner when relief is implemented

Once the employing authority has implemented relief they must inform the Commissioner within 10 working days that the relief has been given to claimant.   

Employing authority must inform the Commissioner within 10 working days of implementation of relief.

Response to Commissioner’s direction 

The Commissioner may direct relief be provided if the agency does not follow a recommendation within the specified period, or if the agency proposes relief the Commissioner does not consider appropriate. 

Reporting to relevant Minister or Parliament

Under the Regulations, the Commissioner may report the following to the relevant Minister or Parliament:

  • if an agency does not give the relief directed by the Commissioner 
  • if an agency has not complied with any of the Regulations.

Agency records and annual reporting to the Commission 

Agencies should maintain appropriate records of breach claims lodged with the agency. These include claims that are subsequently withdrawn in writing within the 15 working days after lodgement, so they were not referred to the Commission. The Commission will report on any claims that it has received that are subsequently withdrawn. 

Agencies are to maintain records for annual reporting.

 

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Page last updated 30 December 2014