This policy is designed to ensure a consistent approach to the investigative function conferred on the Primary Registrar under the provisions of S10 (1) (e) of the National Law.
Registrars view investigations as outlined in the policy to be a higher order more intensive activity than the processes adopted to deal with compliance issues generally.
This policy contemplates investigations being undertaken where a level of formality in evidence collection is deemed necessary or beneficial after careful consideration of other, less intensive forms of intervention.
This policy directs management of the Registrars’ function “to investigate complaints about the compliance of registered community housing providers with community housing legislation.” S10(1)(e).
It conforms to best practice standards in the Australian Government Investigations Standards which requires a public policy on the conduct of investigations.
Below are a list of terms, keywords and/or abbreviations used on this page.
Registrars agree that most complaints about non-compliance of community housing providers with the requirements of the National Law are managed through compliance monitoring mechanisms. These mechanisms are outlined in other documents: Visit the NRSCH Regulatory Engagement policy and NRSCH Assessment policy page for more information.
Registrars acknowledge that on rare occasions there are some complaints or circumstances where the matters at stake are complex or extraordinary and should be dealt with through a formal investigation process.
Registrars have varied State/Territory obligations to comply with Australian Government Investigation Standards (AGIS 2011). Noting that Registrars have only administrative offence provisions, Registrars have agreed to follow AGIS best practice investigation standards to:
This policy is to be followed by Registrars and regulatory officers in NRSCH participating jurisdictions.
At Section 10 the National Law sets out the functions of the Registrar. The two functions relevant to this policy are:
It is noted that each participating jurisdiction’s own adoption legislation may also affect certain aspects of the way this policy is administered. However, Registrars agree to follow the framework of the AGIS 2011 in initiating and managing an investigation.
Each participating jurisdiction is responsible for identifying and developing methods to monitor its adherence with this policy.
The NRSCH is designed to identify, monitor and respond to risks that have serious consequences for tenants, funders and investors, community housing assets and the reputation of the sector.
Each Primary Registrar is responsible for both promoting a culture of
compliance, detecting and addressing non-compliance at the earliest
opportunity to protect the integrity of the community housing sector, and the continuous improvements of the sector.
In doing so each Primary Registrar of a participating jurisdiction when using their investigative function should ensure that investigation practices contribute to fairness, integrity and good public administration.
When deciding to conduct an investigation Registrars will be guided by the following principles of good regulation:
In addition to these principles Registrars and their officers will comply with the service standards noted below.
The rules of procedural fairness will be applied throughout the investigation in order to safeguard the organisation or individual whose rights or interests may be affected and ensure that decision making is fair and reasonable.
This will include:
The identity of people making complaints will be protected where this is practical and appropriate.
Personal information that identifies individuals will only be disclosed or used with the permission of that individual unless there are possible findings of noncompliance tied to an individual’s actions. In such cases, Registrars may necessarily use the individual names in background checks with other regulators and law enforcement, in subsequent proceedings or in referring the case to other bodies; without the permission of the individual.
The conduct and findings of investigations are subject to strictly controlled disclosure processes under the public sector special handling caveat of ‘sensitive-investigations’. This means investigation reports will not be made publically available; however, components may be redacted for public release or under freedom of information requirements. Providers are expected to brief their members, Boards and staff on investigation processes, findings and enforcement outcomes. Providers may seek the public release of an investigation report with permission of the Registrar.
Allegations or findings related to individuals or providers may be disclosed to other authorities where they relate to other jurisdictional interests. In addition, enforcement action arising from the investigation may be published on the Register of registered community housing providers in line with the provisions of the National Law.
All information that is collected during an investigation will be handled in accordance with applicable information and privacy laws. Evidence will be contained and treated as ‘discoverable’ in any later appeals process.
Investigations are targeted at components of a provider’s conditions of registration as outlined under S15 of the National law. As such powers to collect information and require attendance for interview are enacted under S15(2)(d)(e)(f)(g). Registrars’ will as a norm seek voluntary information disclosure before enforcing disclosure.
Persons appointed under delegation by a Registrar to undertake an
investigation are expected to have:
Registrars can also use a range of people to assist in investigations based on their skill set and experience. These may include other regulatory staff, consultant/contract staff, and/or staff seconded from other agencies.
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