regulatory officer training program no.1 – june/july 2015 session 3 day (module) 2

Regulatory Officer

Training ProgramNo.1 – June/July 2015

Session 3 Day (Module) 2

© CIT Solutions Pty Ltd 2015

Planning an inquiry

© CIT Solutions Pty Ltd 2014© CIT Solutions Pty Ltd 2015

How do you plan an effective compliance inquiry?

What inquiry methodologies are available to you?

What different types of evidence might you encounter?


Two types of inquiries

Reactive

An inquiry into an event that

has happened: to ascertain the

facts, learn lessons, (and if

required, liability/culpability

with a view to sanction)

Proactive

An inquiry into circumstances

that give rise to

concern/suspicion that an

issue is ongoing: to ascertain

the facts, prevent, disrupt,

learn lessons, and as required

identify liability/culpability

with a view to sanction

4


Where do I start?

What is alleged – so what is being inquired/investigated?

When does the inquiry have to be completed?

What resources are needed / available?

A plan of action / a compliance plan


What is being inquired about ?

Conduct that is allegedly in breach of ….?

Whether the conduct, if corroborated, is sufficient to constitute an infringement against any of the Building Code

What facts have to be proved? How will they be proved?


Compliance plan

Inquiry overview (basic intro into what the inquiry is about; no more than a couple of sentences)

Scope & Purpose (Specific offences suspected – this may be refined as inquiry progresses. Objectives – can it be determined yet whether this will result in civil litigation or some other intervention? )

Facts to be established / avenues of enquiry & prioritised evidence-gathering tasks [use the Evidence Matrix as your matrix for this]

Respondents (the number may vary as the inquiry proceeds)

Resources and likely methodologies

Risks (to the inquiries/officers etc) including confidentiality issues

Time frame (by when does inquiry have to be completed?)


Gather and manage evidence

Avenues of enquiry

– facts to (dis)prove

Evidence matrix

Types of evidence

Search (access / data analysis / forensic accounting)

Rules of evidence


Tools to helpguide your

investigative thinking

9


The ABC of investigation

Assume nothing

Believe nothing

Check everything


Areas to be planned

Inquiry risk management

Knowledge gaps: understanding what has occurred, who is involved and what needs to be discovered

(intelligence and/or inquiry stages)

Avenues of enquiry: proving/disproving specific facts for suspected offences

Planning tools

Which tools when?Tool When used

Investigation management matrix

To ‘brain storm’/’nut out’ strategic approach at outset

Timeline tool To understand chronology of relevant facts/evidence as investigation progresses

Evidence matrixFacts & Evidence worksheet

To identify specific evidence gathering requirements and opportunities

Risk management tools At outset of investigation and then regularly reviewed and updated; specific risk assessments for individual operations

Operational planning tool(SMEAC & R)

For specific operations during the investigation e.g. search, access, inspection


Understanding risk

Risk = the likelihood of an adverse harm occurring.

This is not to be confused with a Threat, which is the source of that harm.

Vulnerability = measurement of probability against impact. (The probability of a given outcome occurring may be very low but the adverse impact may be very significant.)

A risk assessment is the means by which the risks involved in an operation can be balanced against the benefits.

Managing investigation-related risk(the PPPLEM model – example extracts)

Political Physical Psychological Legal Economic Moral

Suspect

InvestigatorLack of

promotion/training opportunities due

to lengthy case

Largely office-based, investigation - normal

WHS regime applies

Occasional requirement to

conduct on-site search – to be separately risk-

assessed on each occasion

Stress of long-term investigation

Misuse of powers

Conflict of interest declared

Organization

Reputational damage from

high-profile investigation

that does not end in prosecution / recovery of taxes

Civil litigation arising from investigator misuse of

powers

Damages awarded as

outcome of civil litigation

Costs of lengthy investigation

Third party / ‘The Public (Interest)’

Intelligence/inquiry knowledge gap matrix (example extracts: unlawful disclosure of information)

Question What do we know What do we need to know

Where can we get it from?

Did R have access to restricted info as a consequence of employment?

JD, organization info management policy confirming that R would have had access

That R understood role and responsibilities in relation to restricted info

i/v of R; third party statements evidencing R’s previous consistent compliance with policy

Did R access the info in question

[no evidence at present] That R did have access to the relevant info before it was leaked

Computer logs; third party statements, i/v of R

Did restricted info pass outside the organization

Informant’s allegation The manner in which info was leaked; when it was leaked; confirmation that the info was received by someone outside org not entitled to have info

Statement from info recipient; third party statements, i/v of R

Etc etc … [what, who, where, when, how, why] … … …


Timeline tool

Understanding the chronology of and relationships between events by constructing a timeline can help to identify:

a) the facts, observations, movements and associations that need to be evidenced; and

b) where gaps might exist in the chain of evidence and the investigation narrative.

Evidence matrixAllegation Offence Facts at issue Avenues of inquiry

False or misleading statement

s.8K TAA 1953 Person made a statement Evidence that the POI made a statement;

whether the statement was unsolicited or in response to a request

How the statement was madeEvidence of the form of the statement (verbal,

written, electronic submission). How is this statement preserved and to be exhibited?

Was the statement made to a taxation officer?

Evidence that person receiving or hearing the statement was a taxation officer at the time the

statement was made.

What assertion was made (that is believed to be false or

misleading)?Evidence from the statement of the assertion

The assertion was false or misleading

Evidence of what the true facts were; evidence of how the assertion in the statement differed

from the reality.


Avenues of enquiry

Did the person make a statement in relation to the matter? (If no, then no further enquiry necessary?)

Was the statement made to officer? (If no, then no further enquiry necessary because a key element of the offence is not proved.)

What was the statement about?

Was the statement unsolicited or made in response to an enquiry/requirement?

Was any part of the statement untrue? (How is that known to be so?) (If no, then no further enquiry necessary because a key element of the offence is not proved.)

[continued …]

example


Avenues of enquiry

Was the untruth a material particular? (If no, then no further enquiry necessary because a key element of the offence is not proved. Has some other offence been committed?)

What would have been the effect (harm?) of acting according to the false information?

Was any assertion made in the statement misleading? (If no, then no further enquiry necessary because a key element of the offence is not proved. Has some other offence been committed?)

In what way was the assertion misleading? (How is that known to be so?)

Who would have been mislead by it?[continued …]

example


Avenues of enquiry example

What would have been the effect (harm?) of the misled person acting according to the misleading information?

Is there a statutory defence?

(If so, what avenues of enquiry need to be investigated in order to corroborate or negate the claimed defence?)


Which reaffirms…..the evidence matrix is a key tool because ...

... It is often referred to as the ‘blueprint’ for the

case/activity;

….It is the foundation of an evolving and

dynamic inquiry plan;

... It is the foundation of a delegates assessment of

the matter : has sufficient relevant and admissible

evidence been obtained to substantiate a

determination


Take a break

regulatory officer training program no.1 – june/july 2015 session 3 day (module) 2

Documents

inquiry cit solutions

inquiry methodologies

specific evidence

effective compliance

inquiry proceeds resources

different types of evidence

specific risk

types of inquiriesreactive