AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
A support person’s role is limited to providing emo - tional and practical support. They should not be a “mouthpiece” for the interviewee and they must not be directly involved in the investigation or have a con - flict of interest. A support person is chosen by the participant and is typically a trusted, impartial individual such as: • a friend or family member; • a colleague; or • a union representative. The support person’s role should be confirmed and recorded at the start of the interview to avoid disputes. Lawyers There is no general legal right to a lawyer during an interview, unless expressly provided under the rel - evant investigative framework or at the employer’s discretion. Employers may alternatively permit a lawyer to be pre - sent on the basis that they only act in the capacity as a support person, and not as a lawyer or advocate. If permitted, lawyers may advocate on behalf of the interviewee and provide them with advice, and may ask clarifying questions during the interview. However, it is not appropriate for the representative to influence an interviewee’s response or answer questions on their behalf. The representative’s role should be confirmed and recorded at the start of the interview to avoid disputes. Managing Disruptive Behaviour If a support person or representative becomes disrup - tive during an interview, an investigator may take the following steps: • remind them of their agreed role; • record the behaviour and request that they stop; • if it continues, pause the interview to reset expec - tations; and • if it remains unresolved, cease the interview and consider alternative options, such as formal direc -
tions regarding alternative support persons or representatives. 3.7 Information Before the interview, the investigator should provide the interviewee with certain information about the investigation and the investigation process to ensure transparency and procedural fairness. This includes: • an introduction to the interviewee about the inves - tigator (if not known to them), confirming the fact that the investigation is occurring and their role as investigator; • explaining the purpose of the interview; • informing the interviewee of their rights to a sup - port person and/or representative; • providing contact details for employee support services; • explaining obligations regarding confidentiality and the prohibition on victimisation; and • outlining who will attend the interview and whether the interview will be recorded, and obtaining con - sent for recording. It is best practice to remind the interviewee of the above matters at the start of the interview. At the end of the interview, the investigator should: • ask whether the interviewee wishes to provide any additional information or has questions; • confirm any request for documents in writing after the interview; • remind the interviewee of confidentiality and non- victimisation obligations; and • remind the interviewee of available employee sup - port services, where appropriate. 3.8 Stopping the Interview If an interviewee requests to stop the interview, the investigator should promptly pause the interview and make a reasonable attempt to address the concern. Common reasons may include distress, fatigue, confusion about the process or particular interview questions, or the need to consult a support person or lawyer.
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