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Watch a free videoInvestigators embark on a search for evidence of compliance, misconduct, or breaches of the law. Whether they investigate under a common law or legislative framework, they need to know what they are doing. What are some of the things they can get wrong? And what are the ramifications of making mistakes in this mine field?
This engaging series of 12 videos (with quizzes to match) is full of real-life “war stories” and amusing anecdotes, told with the style of a true raconteur with experience and knowledge that is hard to beat: Ron Gipp. Each story, while interesting, sad, tragic or downright funny, comes with a serious message and practical suggestions for implementation of the right way to go about things.
At 03:25 Mr Rigg talks about regulatory offences not being criminal. I note that a matter under S31(1) of the WHS Act carries potential for up to 5 years imprisonment. I wouldn’t consider that as quasi-criminal.
Dear Mark
My interpretation of Mr Gipp’s comments is that he was explaining one definition of the term regulatory for the purposes of his discussions in the videos – and making the point that some regulatory offences can be distinguished from some types of crimes. Mr Gipp has been a criminal lawyer for many years, as well as an administrative lawyer. He was a police officer and has done many cases for the police as a barrister. In these videos we were wanting to focus more on admin law than indictable crimes, for example. But we do use some criminal case examples to highlight particular issues of relevance to admin law.
F McK.
I would suggest that the use of a blacklist or whitelist would potentially breach government purchasing frameworks and policies. If a tenderer breaks the law, the legal system is there to address it. All tenderers who meet the legal and technical requirements of a tender process, should be able to tender equally.
The practice Mr Gipp describes in working collusively with government agencies to exclude tenders, whether by omission or inclusion, could be seen by some as corrupt behaviour. How is it any different to collusion among tenderers?
In any investigation, the ends do not justify the means.
Dear Mark. As per your previous comment. I don’t think Mr Gipp is recommending collusion! He is describing what was done by others. F McK.
Public sector agencies have procurement frameworks in place, that are subject to proper transparency and public consultation. This includes preferred contractor and pre-qualification schemes.
The use of a white list is not an appropriate remedy to a blacklist. A white list, as described in this session, is likely an illegal workaround of procurement frameworks and policies to the extent that it could be seen as corrupt activity.
Dear Mark. Did you think that Ron Gipp was advocating a white list? Or are you just making a comment. I presume the latter.
F McK.
Where is the sound? Checked my computer, sound is working but not with this video?
Thanks Ian – I don’t know where the sound went! I can see another person watched the video 4 hours after you and didn’t have a problem. Would you mind checking again or trying on a different device?
Interesting. Is it considered that various sanctions such as improvement and prohibition notices as well as infringement notices ( which are commonly known as compliance and enforcement tools) would they be considered a warning? Or if an Inspector issues these notices if not considered a warning, but a step above the warning, potentially then be determined as being overturned due to the decision of Proudman and Dayman?
Thanks for your comment/question Stephen. I would say that Ron Gipp meant a warning is not the issue of any kind of notice. He meant simply an oral warning. I believe any kind of issue of a statutory notice is a decision of an administrative character under an Act. It must comply with administrative law rules. It must comply with natural justice. It could be turned aside upon review (merits or judicial review). This is covered in more detail in my administrative law course if you end up doing it or have done it! Re Proudman v Dayman – that is more about criminal proceedings – in other words you could issue an infringement notice lawfully even if the recipient of the notice would have said they didn’t believe they were doing anything wrong – even if in a criminal matter there would be an honest and reasonable belief on the part of the ‘accused’. (Of course that general comment doesn’t take account of whether the offence is strict liability ie what mens rea is involved…)
Very good video.
Great!
I’d tend to agree with Mark. While this may an interesting anecdote, it is very difficult to work out what the learning outcome is supposed to be. The anecdote seems to be; we had a problem, we come up with a solution, the legal process determined this solution to be improper, so we changed the packaging, called it an all-new product and got away with it. I don’t know what I am supposed to take away from that.
There are a few things coming out of this video. Be careful when you are removing entitlements or legitimate expectations; be careful if you are expressing a conclusion which is speculative and adverse to a person with such rights; be careful about publication of information (such as the leaked black list) which affects reputations of a company or individual.
Another message, arguably (as I suggest to Ron), it is better to say nothing (eg by not putting someone’s name on an eligible-for-work ‘white list’) than to say something adverse (eg by putting someone’s name on a black list).
Also, remember that natural justice (procedural fairness) depends on the circumstances (in this case the judge took a view about unfairness which was different from that of the top QC in the State).
A very good reminder of knowing the legislation (statute) your operating under and use policies as “guides” only. If in doubt go back and read the statute.
Excellent video. Avoiding leading questions is a real challenge. Thank you.